Employment Law Daily DOL opinion letters address FMLA intermittent leave, FLSA Section 7(k) exemption, volunteer status
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Monday, August 12, 2019

DOL opinion letters address FMLA intermittent leave, FLSA Section 7(k) exemption, volunteer status

By Pamela Wolf, J.D.

A mother was qualified for intermittent leave to address her children’s special needs, public employees working in both the fire and police departments were not due overtime, and extra duty work for a third party did not change volunteer status.

On August 8, the DOL’s Wage and Hour Division released three new opinion letters addressing compliance issues under the FMLA and FLSA. Specifically, the letters discuss whether time spent attending meetings related to a child’s individualized education program qualifies for FMLA leave; under the FLSA, the application of the Section 7(k) overtime exemption to public agency employees engaged in both fire protection and law enforcement activities; and the employment status, also under the FLSA, of volunteer reserve deputies who may perform paid extra duty work for third parties.

Intermittent FMLA leave. In FMLA2019-2-A, WHD Administrator Cheryl Stanton concluded that a mother’s need to attend Committee on Special Education (CSE) and/or Individualized Education Program (IEP) meetings addressing the educational and special medical needs of her children with serious health conditions (as certified by a health care provider) is a qualifying reason for taking intermittent FMLA leave.

Meetings. The children received pediatrician-prescribed occupational, speech, and physical therapy provided by their school district. Four times a year their school held CSE/IEP meetings to review their educational and medical needs, well-being, and progress. These meetings included participation by a speech pathologist, school psychologist, and occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the child under the child’s IEP. Teachers and school administrators also attended. The meeting participants provided updates on the children’s progress and areas of concern, reviewed recommendations made by the children’s doctors, reviewed any new test results, and may make recommendations for additional therapy.

Essential to providing care. Among other things, Stanton noted that the WHD had issued a previous letter stating “that an employee was entitled to take FMLA leave to attend ‘[c]are [c]onferences related to her mother’s health condition,’ because her attendance at these conferences was ‘clearly essential to the employee’s ability to provide appropriate physical or psychological care’ to her mother” (FMLA-94).

Here, it likewise appears that the mother’s attendance at her children’s IEP meetings is ‘essential to [her] ability to provide appropriate physical or psychological care’ to the children. The mother attended these meetings to help participants make medical decisions about the children’s medically prescribed speech, physical, and occupational therapy; to discuss the children’s wellbeing and progress with the providers of the services; and to ensure that the children’s school environment was suitable to their medical, social, and academic needs. It was not necessary for the child’s doctor to be present at the meetings in order for the mother’s leave to qualify for intermittent FMLA leave.

FLSA Section 7(k) exemption. In FLSA2019-11, Stanton next addressed whether a public agency employee who works for both the agency’s fire department and its police department is entitled to any overtime pay “irrespective of the number of hours worked in either position, or cumulatively, provided the hours comply with the Section 7(k) exemption.”

Hours aggregated. Where an employee works for separate and distinct employers, each employer may disregard work performed by the employee for the other employer when determining its responsibility under the FLSA. However, where, as here, the employee performs “fire protection activities” for the fire department and “law enforcement activities” for the police department of the same public agency, the hours are aggregated.

Overtime regulations. Notably, 29 C.F.R. § 553.230 explains that no overtime is owed to an employee engaged in fire protection who works 212 or fewer hours in a 28-day work period or that same ratio of hours to days in any work period from 7-27 days—about 7.57 hours per day over the entire work period. Nor is overtime owed to an employee engaged in law enforcement who works 171 or fewer hours in a 28-day work period or that same ratio of hours to days in any work period from 7-27 days—about 6.11 hours per day over the entire work period.

Moreover, 29 C.F.R. § 553.213(b) clarifies that when an employee is engaged in both fire protection and law enforcement, “the applicable [maximum hours] standard is the one which applies to the activity in which the employee spends the majority of work time during the work period.”

More time in fire protection. The inquirer gave two examples of the division of hours that a public agency employee might work when engaged in both fire protection and law enforcement activities. First, in a 28-day work period, the employee works 17 days and no more than 129 hours engaged in fire protection for the fire department, and seven days and no more than 43 hours engaged in law enforcement for the police department, making the total hours are no more than 172.

Section 553.213(b) directs that the fire protection maximum hours standard applies in this case because the employee spent the majority of time in fire protection, rather than in law enforcement. The maximum number of hours an employee may work for a fire department in a 28-day period and remain within the partial overtime exemption provided under Section 7(k) is 212. Because 172 is less than 212, this employee does not have to be paid overtime, even though the total hours is greater than the maximum for employees solely engaged in law enforcement.

In the second example, the employee still works 17 days and no more than 129 hours engaged in fire protection, but works 11 days and no more than 67 hours in law enforcement. This increase in hours working in law enforcement does not change the end result. The fire protection maximum hours standard still applies because the employee spends the majority of the work time in the 28-day period with the fire department. Because 196 (the total hours worked in fire protection and law enforcement) is less than 212, the employee does not have to be paid overtime.

More time in law enforcement. Stanton noted that if the numbers were reversed, and the employee worked 129 hours in law enforcement activities and 43 or 67 hours in fire protection activities, the employee would spend the majority of the work time in law enforcement, and therefore the lower maximum of 171 hours for employees engaged in law enforcement would apply. Because the total hours worked would exceed 171 hours in the 28-day work period, the public agency would have to pay the employee overtime for either one hour, in the first example (129 + 43 – 171), or 25 hours in the second (129 + 67 – 171).

FLSA volunteer status. Reserve deputies’ performance of extra duty work for third parties did not result in the loss of their volunteer status under the FLSA, Stanton concluded in FLSA2019-12.

Not compensated. First, the reserve deputies volunteer for the sheriff’s office and thus were not otherwise employed by the sheriff’s office. Moreover, it was clear that volunteer reserve deputies in the program were not “compensated” merely by receiving potential access to extra duty work. Importantly, there was no indication that their access was related to how many hours they volunteered or the type or quality of their volunteer work. Whether the volunteer reserve deputies actually perform extra duty work depends on the needs of third parties who request security services, among other factors, with no indication that such access induced individuals to volunteer as reserve deputies.

Reasonable benefits. Alternatively, even if a volunteer’s access to extra duty work were to be construed as compensation, that access would be a “reasonable benefit” for volunteering and would not alter their volunteer status. Under WHD regulations. including individual volunteers in group insurance plans or pension plans is generally a reasonable benefit. The WHD has also previously said that $1,500 in annual relief from personal property taxes during the term of a volunteer’s service is a reasonable benefit.

Individuals do not lose their volunteer status when they are provided reasonable benefits by a public agency for whom they perform volunteer services, Stanton said. Giving the volunteer reserve deputies access to extra duty work for third parties is one such reasonable benefit. This access is offered to all officers on the same general terms, is not guaranteed, and is contingent upon the changing needs of private third parties. Reserve deputies account for only about 6 percent of extra duty hours worked. Further, the access to extra duty work has no cost to the sheriff’s office. Therefore, when examined in the context of the economic realities of this particular situation, the furnishing of access is reasonable.

Stanton also pointed to Todaro v. Twp. of Union (D.N.J. 1999), where the court reached the same conclusion in a substantially similar case.

No pressure or coercion. Lastly, the WHD Administrator found no indication that the sheriff’s office manipulated or abused minimum wage or overtime pay requirements by coercing or unduly pressuring individuals to volunteer as reserve deputies. Instead, the reserve deputies appeared to offer their services without any expectation of compensation, and without any pressure or coercion. Accordingly, access to potential external employment opportunities from private third parties did not change the reserve deputies’ volunteer status. Their volunteer status appeared to be analogous to the “auxiliary police” example provided in 29 C.F.R. § 553.104(b).

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