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Labor Department Releases First Opinion Letters

On April 12, 2018, the U.S. Department of Labor (“DOL”) released three opinion letters on a variety of subjects, its first letters since 2009. The opinion letters – coming from the DOL’s Wage and Hour Division – cover work hours, breaks, and lump-sum payments. The fact that it did so is, unto itself remarkable: It has not done so in nearly a decade. Instead of using opinion letters, the Obama Administration used what are called “Administrator Interpretations” to advise employers and employees on federal employment law, as an employment lawyer can explain.

What is an Opinion Letter, and is it Important?

An opinion letter – while unofficial sounding – is an official document produced by the Wage and Hour Division, and is therefore its official stance on a given employment law issue. The purpose of the letters, according to Secretary of Labor Alexandra Acosta, is to “provide clarity that helps increase compliance to the benefit of all.” The letters, however, do more than clarify what the law is: They can be used in judicial proceedings. These opinion letters can actually be deployed as a complete affirmative defense to monetary liability by an employer under Section 10 of the Portal-to-Portal Act if the employer can show it acted in good faith conformity with a letter’s guidance.

What’s in the Letters?

The first letter states that, for hourly employees working irregular work hours, time spent traveling between worksites or traveling on weekends must be paid for by the employer. In other words, this means that time spent traveling for work after arriving at work for the day, like between worksites, is compensable, but time traveling to or from work to get home is not. In the second letter, the DOL explains that 15-minute rest breaks requested by a doctor during an 8-hour shift that are required by the Family Medical Leave Act for a serious health condition are not compensable, as they are primarily to benefit the employee, rather than the employer. While those working under the FMLA must receive the same number of paid breaks as other workers, this answers the question of whether an employer is required to pay the worker for a separate rest break, and the answer is “no.” The third and final letter discusses the fact that certain lump-sum payments from employers to employees do qualify as earnings under Title III of the Consumer Credit Protection Act for garnishment purposes, if they are made in exchange for personal services. Lump-sum payments includes payments like bonuses and severance pay.

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