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Trump DOL Issues First Wage and Hour Opinion Letters

    Client Alerts
  • April 25, 2018

Last year, the Department of Labor’s Wage and Hour Division announced that it would again begin issuing opinion letters with regard to questions about wage payment practices. Many employers suspected that the agency ceased issuing such opinions during the previous administration because courts reacted negatively to inconsistent positions taken by DOL in subsequent enforcement proceedings.

The three new opinion letters deal with a number of subjects. The first one addresses whether rest breaks taken by an employee entitled to intermittent FMLA leave are unpaid, even if they are 15 minutes in length, which is too short for the employee to be taken off the clock under the Fair Labor Standards Act. DOL agreed that FMLA-mandated breaks constitute an exception to the general FLSA rule, and that the short breaks may be unpaid.

The second opinion letter deals with compensability of travel time for non-exempt service technicians. DOL stated that when the employee has no regular scheduled workday, the employer may use a variety of options in order to determine whether travel may be non-compensable because it is outside of ordinary working hours. These alternatives include determining average starting and stopping times, as well as a negotiated understanding with the technician regarding normal start and stop times.

The third (non-administrator) letter advises employers as to which lump-sum payments such as bonuses, commissions and severance qualify as earnings to which child support garnishment orders must be applied. According to DOL, most forms of compensation are subject to garnishment orders, with limited exceptions, such as Workers’ Compensation payments intended to reimburse the employee for out-of-pocket medical expenses, and buybacks of company shares owned by employees.