The United States Department of Labor (DOL)’s Wage and Hour Division announced recently that it published several new guidance documents called “opinion letters” on wage and hour issues. An “opinion letter” is an official, written opinion by the DOL on how a particular law applies in specific circumstances. These opinion letters can be quite helpful and provide guidance about (as you’ll see below) some wide ranging, yet practical, issues that come up for employers from time to time. The opinion letters issued this week talk about compliance with the federal Family Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). Here’s the rundown (and links . . . if you find your interest peaked):
(1) Question: Does an employer have to pay a non-exempt employee for 15-minute rest breaks, which are certified by a health care provider due to the employee’s serious health condition?
Breaks may benefit the employer and therefore have to be paid? What? Yes, as this opinion letter puts it, “rest breaks up to 20 minutes in length are generally compensable because the breaks predominantly benefit the employer. Such breaks are “common in industry,” “promote the efficiency of the employee,” and “are customarily paid for as working time.” As a result, because short rest breaks up to 20 minutes in length “primarily benefit[ ] the employer,” an employer should pay for rest breaks that are 20 minutes or less. Sec’y of Labor v. Am. Future Sys., Inc., 873 F.3d 420, 430 (3d Cir. 2017); see also 29 C.F.R. § 785.18 (short breaks “promote the efficiency of the employee”); Naylor v. Securiguard, Inc., 801 F.3d 501, 505 (5th Cir. 2015) (short breaks are “deemed to predominantly benefit the employer by giving the company a reenergized employee”). In contrast, rest breaks for an employee due to their family medical leave need for breaks is for the employee’s needs and, therefore, need not be paid. In fact, you should make sure to track such time off as part of the FMLA time they are entitled to. Meanwhile, none of this suggests that an employee can take an unlimited number of short breaks and be paid for them. Because the DOL is using industry practice as a factor, it would be safe to limit the paid breaks to two a day (or shift).
Short answer: It depends. In certain circumstances, no.
Here’s a quote from the opinion: “Because the activities described in your letter predominantly benefit the employee, they do not constitute compensable worktime under the FLSA . . . Additionally, the activities you have described also constitute noncompensable “off duty” time under [the law].” CLICK HERE to read the opinion letter.
Once again, the focus was on whether the time was primarily for the employer vs. the employee. In this case, the tests done were completely voluntary, they were a way for employees to reduce their health care costs, and they did not relate to the employees’ jobs. In other words, there wasn’t much that directly benefitted the employer at all, which is ultimately why the DOL found that the time for such testing need not be paid. It would be quite a different thing if the tests were required by the employer, for example. The bottom line? When in doubt, pay it out. We’re talking about the time it takes to do the testing. Cheaper and less risky to just pay for the time if you’re not sure and it may well help reduce turnover, which is not cheap.
(3) Question: Are organ donors covered under the FMLA?
Short answer: Most likely, yes.
Here’s a quote from the opinion: “An organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “inpatient care” under [the law] or “continuing treatment” under [the law].” CLICK HERE to read the opinion letter.
As you may know, Maine family medical leave already covers organ donation. At a minimum, then, an employee would get 10 weeks of Maine leave. If the donation causes a serious health condition or involves inpatient care (which most donations would), it appears federal FMLA leave would also be required. The practical question is whether it is worth it trying to figure out some way to keep it to just the Maine leave – not only may it affect morale in terms of how you, the employer, is treating someone giving up an organ for someone else but it also then, ironically, uses up only the entitlement to Maine leave and not the 12 weeks due under federal. In other words, if you decide it doesn’t fall under the coverage of federal law, it can’t use up the 12 weeks owed under federal law.
The DOL’s wage and hour division has a website where you can search for all kinds of different opinion letters on a wide range of topics. Here’s some other good news: the DOL encourages employers to submit requests for opinion letters! For more information on how to request an opinion letter, CLICK HERE.
Want to learn more about wage and hour issues? Join ST&A Attorneys Rebecca Webber and Jordan Payne Hay on September 12, at 7:30 a.m., at the Oxford Casino. The Oxford Chamber of Commerce, together with Central Maine Human Resources are sponsoring a program on wage and hour issues for employers, private and public. If you have an employee, the topic is relevant; whether you have an HR department or are just handling employee issues on your own, the discussion will be helpful. CLICK HERE for more information on the program and to register for the event!
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters. You can contact us at 207.784.3200. Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.