The Wage and Hour Division of the U.S. Department of Labor (DOL) published three opinion letters earlier this month providing employers guidance on how to treat travel time, break time, and whether lump-sum payments can be garnished and to what extent.

The DOL re-started its Opinion Letter program after several years of publishing Administrative Guidance pieces that did not give specific direction about a question.  Instead, the Administrative Guidance pieces gave a dissertation on the law or regulation in question without committing to a specific answer. Opinion Letters, while offering a slower response, can be relied upon by the employer as official statements of agency policy.

The first opinion letter provided the following information on whether certain travel time was compensable:

Where an employee is offered public transportation but requests permission to drive his [or her] car instead, the employer may count as hours worked either the time spent driving the car or the time he [or she] would have had to count as hours worked during working hours if the employee had used the public conveyance.

When an employee is temporarily working at a fixed remote location, generally, the travel time from the hotel to the work site and back would be considered ordinary home-to-work travel, and, as such, need not be compensated.

Compensable worktime generally does not include time spent commuting between home and work, even when the employee works at different job sites. Travel between job sites after arriving at work, however, is compensable.

As to commuting time, a company-provided vehicle does not, alone, make an ordinary commute compensable, provided that the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment, and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.

The second opinion letter addressed whether an employee’s 15-minute breaks due to a serious health condition were compensable. Normally breaks of 20 minutes or less must be compensated for. However, Wage and Hour applied the Family and Medical Leave Act regulations and found FMLA protected breaks that are required due to a serious health condition are protected, but the FLMA protected breaks are not compensable pursuant to that law.

The third opinion letter found that certain lump sum payments from employer to employee may be considered pay if they are “in exchange for personal services rendered.” If they are, then they are subject to the Consumer Credit Protection Act (CCPA) and its garnishment limitations. The Wage and Hour Division considers the following earnings under the CCPA:

·        Commissions

·        Discretionary and nondiscretionary bonuses

·        Productivity or performance bonuses

·        Profit-sharing, referral, and sign-on bonuses

·        Moving or relocation incentive payments, attendance, safety, and cash service awards

·        Retroactive merit increases

·        Payment for working during a holiday

·        Workers' compensation payments for wage replacement

·        Termination pay (e.g., payment of last wages, as well as any outstanding accrued benefits)

·        Severance pay

·        Back and front payments from insurance settlements

The following payments are not considered earnings, and therefore would not be protected by the CCPA:

·        Workers' compensation payments for medical reimbursements

·        Wrongful termination insurance for compensatory or punitive damages

·        Buybacks of company shares

ASE members can access information and guidance on wage and hour questions via ASE’s website 24/7/365 in the CCH HR Answers Now library or by calling the ASE Research Hotline weekdays from 8:30 a.m. to 5:00 p.m.

Source: CCH Ideas and Trends Headlines No. 806 5/9/2018 WAGE HOUR—New DOL guidance on travel time, health-related rest breaks, garnishment, and “white collar” exemption in higher education