The U.S. Labor Department’s Wage and Hour Division (WHD) has issued its first batch of new formal opinion letters since the Trump Administration’s WHD announced last year that it would resume the practice after the Obama Administration ended the issuance of opinion letters in 2010.
Opinion letters are prepared in response to inquiries by stakeholders about how the laws enforced by WHD – primarily the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) – apply in particular factual circumstances. An opinion letter can provide a defense to an alleged violation if the employer is able to show that it acted in good faith “in conformity with and in reliance on” the letter.
On April 12, 2018, WHD issued two new opinion letters regarding whether certain time must be treated as work time, and is therefore compensable, under the FLSA. The first letter provides guidance on how to calculate the compensable portion of travel time where a nonexempt employee who normally has irregular hours travels out of town for more than a day. The second letter addresses whether short break times are compensable even if they are taken as intermittent leave under the FMLA to address the employee’s serious health condition.
Please note that WHD opinion letters tend to address very specific factual situations, and employers are well- advised not to rely on an opinion letter in a situation that is not “in conformity” with the circumstances described in the letter.
Members of the Center for Workplace Compliance (CWC) can read more here.