Last week the U.S. Department of Labor’s (DOL’s) Wage and Hour Division issued a set of new Opinion Letters on the following questions:

1.      Does organ donation qualify for Family and Medical Leave (FMLA?

2.      Is time spent attending benefit and wellness activities compensable time?

3.      Specific Exemption – Does the movie theatre overtime exemption apply to theatres that offer dining services?

4.      Special Exemption – Does the commissioned sales employee exemption apply to a company that sells internet payment software?

5.      If a non-profit member serves as a credentialing exam grader volunteer should they be paid for these services?

6.      Can an employer’s “No-Fault” attendance policy freeze the number of attendance points it recognizes during FMLA leave?

Opinion Letters provide employers specific direction to specific questions regarding issues administered by the DOL Wage and Hour Division. They can be relied upon by employers for enforcement as an affirmative defense if the facts are specific to the situation the Opinion Letter addresses. This can save monetary expenses in subsequent lawsuits. Opinion Letters were re-introduced in 2017 and had been around for decades before the Obama Administration went to its Administrative Interpretations.

Administrative Interpretations (AI) respond to questions with a broad explanation of the law and regulation, but because they were different from Opinion Letters as far as the Wage and Hour Division was concerned there were questions as to its authority being similar to the Opinion Letters. Some sources said they had the same authority as Opinion Letters, and others believed they were too general in nature and left the employer the burden of proving the AI was properly applied to the question or facts at issue. Opinion Letters are therefore believed to provide employers and others a more authoritative position that the Wage and Hour Division takes into consideration when enforcement is in question.

In any case, the DOL is back to publishing Opinion Letters.

In the most recent publication of Opinions, the DOL states that:

1.      Organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA. The organ donation would have to involve “inpatient care” under Sec. 825.114 or “continuing treatment” under Sec. 825.115

2.      Time spent by non-exempt employees at benefit fairs or wellness activities are NOT compensable time according to the DOL. The DOL found these activities to provide a benefit to only the employee.

3.      Wage and Hour states that employees working at a theatre that operated as a single establishment where food services were integrated with the theater operations were still covered by the movie theatre exemption allowing the exemption to overtime to be applied to those employees.

4.      Wage and Hour states that employees doing commissioned sales of software technology was a retail or service establishment covered under CFR Sec. 779.313. The Wage and Hour Division found the software seller met the three requirements of a retail or service establishment. Interestingly, the DOL applied the new U.S. Supreme Court’s “fair reading” standard it promulgated under this year’s Encino Motorcars L.L.C case to support its interpretation.

5.      Members of a professional association’s credentialing examination team that administers exams to its membership and volunteers to be examination graders were bona fide volunteers.  They do not have to be paid a fee for their services. Even though they would continue to receive travel, meals and other expense payments.

6.      A no-fault attendance policy that used points to track attendance and tardiness could freeze those points during an FMLA leave without discriminating against employees on FMLA. The points were not taken away and were administered in the same fashion as those employees that did not take FMLA.

Sources: CCH Answers Now New opinion letters address FLSA and FMLA issues, from organ donation to volunteer status — AGENCY GUIDANCE, (Aug. 30, 2018); FLSA Employee Exemption Handbook Paragraph 761.: FLSA 2018 -23 Opinion Letter (8/28/2018)