The U.S. Department of Labor (“DOL”) Wage and Hour Division (“WHD”) recently issued new opinion letters regarding leave under the Family and Medical Leave Act (“FMLA”) and the retail or service establishment exemption under the Fair Labor Standards Act (“FLSA”).

• FMLA2019-3-A responds to an employee’s question about whether an employer may delay designating leave as FMLA leave if the delay complies with a collective bargaining agreement (“CBA”) and the employee prefers the designation be delayed. According to the letter, the employees are subject to CBAs that allow them to delay taking FMLA leave until after CBA-protected paid leave is exhausted.
  

  After the issuance of WHD Opinion Letter FMLA2019-1-A in March 2019, however, the employer changed its leave policy to require employees to take CBA-protected leave concurrently with FMLA leave.  The employee questioned the appropriateness of this policy when an employee prefers to delay designating FMLA leave and is concerned that designating the leave as FMLA leave may negatively impact the employee’s seniority status under the CBA and state rules.

  In response, the letter reiterates WHD Opinion Letter FMLA2019-1-A, which indicated that neither the employee nor the employer may decline or delay FMLA protection for FMLA-qualifying leave.[1]  Additionally, if an employer provides for the accrual of seniority when employees utilize paid leave pursuant to a CBA and/or other policies, it must permit employees to accrue seniority when they are substituting FMLA leave for paid leave.

• FLSA2019-13 addresses the meaning of the phrase “not less than one month” in the representative period requirement of the FLSA’s retail or service establishment exemption. FLSA exempts an employee of a retail or service establishment from the overtime pay requirement if:
  1. The regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to [the employee] under section 206 of this title, and
  2. More than half [the employee's] compensation for a representative period (not less than one month) represents commissions on goods or services.

 29 USC § 207(i).

The question raised in the letter is whether a representative period of four weeks is “not less than one month.”  The letter concludes that the ordinary meaning of “not less than one month” means not less than one calendar month.  As an example, the letter explains that one calendar month from May 29th is June 29th.  Accordingly, the representative period cannot be just four weeks because “except during the month of February in a common year, four weeks from any given date of one month will necessarily fall short of the corresponding date of the next month.”  The letter states that a representative period of six weeks satisfies the requirement.

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.  Employers can visit this webpage to learn how to request an opinion letter or determine whether existing agency guidance already addresses their questions.

[1] As indicated in a previous news digest article, the WHD Opinion Letter FMLA2019-1-A acknowledged that it is at odds with a 2014 Ninth Circuit opinion, Escriba v. Foster Poultry Farms, Inc., in which the Court 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, but it is always a good idea to proceed with caution and consult legal counsel when confronting a situation with conflicting guidance.