The Wage and Hour Division of the U.S. Department of Labor (“WHD”) recently issued three new opinion letters. One relates to designating leave under the Family and Medical Leave Act (“FMLA”), one asks about a conflicting exemption under state law and the Fair Labor Standards Act (“FLSA”), and one addresses whether volunteer work constitutes hours worked under FLSA.
An opinion letter is a written opinion by WHD on how a particular law applies to the specific facts presented by the person or entity requesting the letter.
FMLA2019-1-A concerns whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement.
The opinion letter states that an employer may not delay the designation of FMLA-qualifying leave. Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Notably, the WHD acknowledges that this is at odds with a 2014 Ninth Circuit opinion, Escriba v. Foster Poultry Farms, Inc., in which the Ninth Circuit held that an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order to preserve FMLA leave for future use. Because Hawaii is part of the Ninth Circuit, Hawaii employers should continue to follow Escriba as opposed to this opinion letter, but be on the lookout for further guidance from the courts and/or DOL on this issue.
The opinion letter further states that an employer also may not designate more than 12 weeks of leave as FMLA leave. While the FMLA does not prevent an employer from adopting leave policies more generous than those required by the FMLA, an employer is prohibited from designating any such additional leave as FMLA-protected.
FLSA 2019-1 addresses questions concerning residential janitors (janitors who both live and work in a building) who are exempt under state law, but not exempt under the FLSA.
The first question presented in the letter is whether residential janitors, who are exempt from minimum wage and overtime requirements under New York state law, are still covered under the FLSA, which does not include an exemption for residential janitors. The opinion letter responds that when a federal, state, or local minimum wage or overtime law differs from the FLSA, the employer must comply with both laws and meet the standard of whichever law gives the employee the greatest protection. Compliance with other applicable legislation does not excuse noncompliance with the FLSA.
The opinion letter next answers whether an employer’s noncompliance with the FLSA in reliance on this state law exemption demonstrates “good faith,” allowing the employer to avoid liquidated damages or the FLSA’s three-year back wage liability period. WHD does not believe that relying on a state law exemption is a good-faith defense to noncompliance with the FLSA, but acknowledges that a court retains discretion to make that determination on a case-by-case basis. In other words, employers cannot just follow the laws they like and ignore the ones they do not.
Finally, the letter addresses the employer’s question about how to track and record a residential janitor’s hours worked. According to the WHD, since the residential janitors reside in the building, they are not considered working all the time they are on the premises. WHD suggests reaching a reasonable agreement with the janitors to establish which hours they are and are not working. The time records need not be precise, but they should generally coincide with the agreement.
FLSA 2019-2 discusses whether an employee’s time spent participating in an employer’s optional volunteer program, which awards a bonus to certain participating employees, is hours worked under the FLSA.
WHD notes that a person is ordinarily not an employee under the FLSA if the individual volunteers without contemplation or receipt of compensation. This assumes that the volunteer offers his or her services without coercion or undue pressure, direct or implied, from an employer. An employer may notify employees of volunteer activities and ask for assistance with them as long as there are no ramifications if an employee chooses not to participate.
Additionally, an employer may use an employee’s time spent volunteering as a factor in calculating whether to pay the employee a bonus, without incurring an obligation to treat that time as hours worked so long as: (1) volunteering is optional, (2) not volunteering will have no adverse effect on the employee’s working conditions or employment prospects, and (3) the employee is not guaranteed a bonus for volunteering.
Questions?
Do you have a question for the WHD? Employers can visit this webpage to learn how to request an opinion letter or determine whether existing agency guidance already addresses their questions. A request for an opinion must include a representation that the opinion is not sought by a party in a Wage and Hour Division investigation, its representative, or any third party acting on its behalf; or by a party, its representative, or any third party acting on its behalf for use in any litigation that was initiated prior to the submission of the opinion letter request. WHD will exercise discretion in determining whether and how it will respond to each request.