The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) – the federal agency responsible for enforcing the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) – has issued three new informal opinion letters, two of which we think will be of interest to most employers.

In the first letter, DOL concludes that an employer is not permitted to delay designating otherwise qualifying time off as FMLA leave, even if the employee elects to use an employer’s paid leave benefits first. Notably, this opinion is contrary to a troubling 2014 ruling by the Ninth Circuit Court of Appeals, which held that an employee has the exclusive right to delay the designation of his or her FMLA leave if he or she chooses to do so. 

In a second opinion letter, DOL concludes that an employer was not required to compensate employees for time spent participating in the employer’s community service program, because the time spent volunteering was optional and the employees had no expectation of being paid.

The third letter deals with the narrow issue of whether the FLSA has an exemption parallel to that available in New York for residential janitors.

Copies of the three letters – FMLA2019-1-A, FLSA 2019-2, and FLSA 2019-1– ­are available online.

Members of the Center for Workplace Compliance (CWC) can read more here.