After going into hibernation during the Obama Administration, opinion letters have reemerged as part of the DOL’s Wage and Hour Division’s (WHD) efforts to guide employers seeking valuable input about legal compliance and best practices. As the DOL itself explains, these letters are “official, written opinion[s] by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter.”
The latest batch of six letters – four of which pertain to wage-and-hour issues under the FLSA, and two of which involve the FMLA – was issued on Tuesday. In summary, according to the DOL:
- Employers are not required to pay employees for time spent voluntarily participating in wellness activities, biometric screenings, and benefits fairs, even where those activities are part of an employer wellness program. This time predominantly benefits employees, and employees are not required to perform their job duties while participating in the screenings. (Of course, as the DOL observed, work breaks of up to 20 minutes generally must be paid – including where the employee uses that break to attend a benefits fair.)
- Nonprofit organizations may lawfully treat members who voluntarily grade exams for 1-2 weeks each year in order to give back to the organization and their profession as volunteers, rather than short-term employees. The service-oriented nature of the duties graders perform, without pressure or expectation of being paid, permits this sort of volunteerism. (The DOL added that the organization can continue to pay for graders’ travel, lodging, meals, and incidental expenses without the risk of “converting” the graders from volunteers into employees.)
- Sales representatives of companies that sell customized technology platforms for merchants to accept credit card payments from their customers, whether remotely or in person, fall within the “retail or service establishment” exemption to the FLSA overtime requirement. Consistent with the Supreme Court’s Encino Motorcars decision earlier this year, the DOL now applies a “fair reading” standard to all FLSA exemptions, not a “narrow interpretation” standard. Furthermore, a business can be a retail or service establishment even if it sells primarily to commercial clients (rather than individual consumers) and even if it is “online only” and lacks a physical brick-and-mortar location.
- Employees of in-theater dining establishments may fall within the “motion picture theater” exemption to the FLSA overtime requirement. The employees at issue perform work for both the movie theater (taking ticket stubs and serving as ushers) and the food service establishment (selling popcorn and Sour Patch Kids, etc.). Further, both the movie theater and food service establishment are incorporated as a single business unit, with common payroll operations and bank accounts, and the business as a whole primarily makes its money by showing movies.
- Employers with no-fault attendance policies (i.e., those giving points for lateness or absence, regardless of the reason) may “freeze” an employee’s accrued points throughout the employee’s FMLA leave without violating the FMLA, as long as they treat other similar types of leave (e.g. workers’ compensation-related leave) the same way. The DOL emphasized that employers may not give points for an employee’s FMLA-qualifying leave. On the other hand, the law does not entitle employees to be in a superior position because they took FMLA leave. Because removing absenteeism points is considered an employment benefit, employers need not make a special case for employees who take FMLA leave. (That said, employers who do remove such points during similar types of leave should also remove points during FMLA leave.)
- Organ-donation surgery can qualify as a “serious health condition” for FMLA purposes. The law defines a “serious health condition” as an impairment or physical or mental condition that involves either “inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment by a health care provider.” Inpatient care, in turn, includes any overnight stay in a hospital (or similar medical care facility). Because organ-donation surgery typically requires staying in a hospital at least overnight – and, in many cases, for several days – it involves inpatient care. Such surgery may also result in continuing treatment if it involves incapacity (e., the inability to work or perform other regular daily activities) and treatment, or multiple treatments.
Employers should be mindful that these opinion letters are fact-specific and, while interpretative guidance, are not binding sources of law. Any employer with a question of whether its situation is sufficiently similar to be affected by any opinion letter(s) may wish to consult an attorney.