PUBLICATIONS

Topics Wage/Hour

DOL Opinion Letters Providing Guidance on Travel Time and the Compensability of FMLA Protected Leave

Date   Apr 12, 2018

Executive Summary: The Wage and Hour Division of the Department of Labor (DOL) issued two opinion letters today, April 12, 2018. One opinion addressed when employers must pay employees for travel time away from their homes and the second dealt with compensability of rest breaks covered by the Family and Medical Leave Act (FMLA). Essentially, the DOL stated that employers are not required to pay for travel time where an employee has no regular working hours if the employer uses one of the permissible methods for identifying the employee’s normal working hours in determining whether travel time is compensable. In another opinion, the DOL addressed the issue of FMLA-protected employees who need fifteen-minute breaks every hour. The DOL concluded that such large, frequent break times were non-compensable under both the FLSA and the FMLA because the breaks predominantly benefitted the employee. It noted, however, that these FMLA-protected employees must be compensated for break time provided to all employees, such as two fifteen-minute breaks per day.

Analysis:

Opinion FLSA2018-18 concerns the compensability of travel time for hourly technicians under the FLSA. The DOL addressed two scenarios: 1) the compensability of the travel time of an hourly technician who travels out-of-state on a Sunday for a training class beginning at 8:00 a.m. at the corporate office, and who then travels back home on Friday or Saturday after the class is over; and 2) generally, compensability of time an employee spends traveling to and from work.

As to the first scenario, the DOL responded, essentially, “it depends.” DOL regulations provide that employees must be compensated for travel time away from their home community when the travel time cuts across the employee’s regular workday. The central issue in this scenario is what travel time is compensable when there is no regular work day. The DOL noted that it carefully scrutinizes claims that an employee has no regular or normal working hours. However, it acknowledged that, in some situations, employees do not have normal working hours.

For the purposes of the opinion, the DOL assumed the requestor’s employees had no regular working hours and noted the different methods an employer may use to ascertain an employee’s normal work hours for the purposes of determining whether travel time is compensable under 29 C.F.R. § 785.39. Employers can review the employee’s time records during the most recent month of regular employment and use the employee’s typical work hours going forward unless there is a subsequent material change in circumstances. If the records do not reveal typical working hours, the employer may choose the average start and end times for the employee. In the rare case where employees truly have no normal work hours, the employer and employee may both negotiate and agree to a reasonable timeframe where travel outside of employees’ home communities is compensable. The DOL’s bottom line on this scenario: it will not find a violation for compensating employees’ travel only during normal working hours so long as employers reasonably use any of these methods to determine an employee’s normal working hours.

With regard to the scenarios involving travel to and from work, and in between job sites, the DOL confirmed that time commuting between home and work, even when the employee works at different job sites, is not compensable. Travel between job sites, however, is compensable. The DOL also concluded that use of a company vehicle does not ordinarily make non-compensable travel time compensable.

Opinion FLSA2018-19 addressed the compensability of eight fifteen-minute rest breaks for a non-exempt employee under the FLSA who has a serious health condition covered by the FMLA. The FMLA provides that FMLA-protected leave may be unpaid. The DOL concluded that the breaks as a whole were non-compensable. It reasoned that, while generally, two fifteen-minute breaks were compensable because they benefit the employer, the total amount of time of the FMLA-protected breaks benefitted the employee. Accordingly, they were non-compensable. The DOL also stated that employees who take FMLA-protected breaks must receive as many compensable breaks as their co-workers receive.

Bottom Line for Employers:

The “travel from home” opinion illustrates the importance of an employer’s due diligence in establishing its employees’ normal working hours. If the travel occurs during normal working hours, it is compensable. The fifteen-minute break opinion provides support for the position that neither the FMLA nor the FLSA require employers to compensate employees for an extended period of break time because that time benefits the employee, so long as the employees are compensated for breaks on the same basis as their co-workers.

If you have any questions regarding this legislation or other labor or employment issues impacting employers in New Jersey, please feel free to contact the authors of this Alert, Salvador Simao, ssimao@fordharrison.com, co-chair of FordHarrison’s Wage/Hour practice group and partner in our Berkeley Heights office or Jeff Shooman, jshooman@fordharrison.com, counsel in our Berkeley Heights office.