New opinion letters discuss FMLA, FLSA issues
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Tuesday, March 26, 2019

New opinion letters discuss FMLA, FLSA issues

By Payroll and Entitlements Editorial Staff

On March 14, the DOL’s Wage and Hour Division released a triad of new opinion letters addressing FMLA and FLSA compliance. These letters discuss:

  • The obligation to designate FMLA-qualifying leave and prohibition on expanding FMLA leave;
  • Wage and recordkeeping requirements for residential janitors (exempted under state law) and the "good faith" defense; and
  • Compensability of time spent participating in an employer-sponsored community service program.

FMLA leave. In opinion letter FMLA2019-1-A, Keith Sonderling, Acting Wage and Hour Administrator, explains that an employer "may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave." The question arose in the context of an inquiry into whether employers could voluntarily permit employees to exhaust some or all paid sick (or other) leave prior to designating leave as FMLA-qualifying in order to "observe any employment benefit or program that provides greater family or medical leave rights to employees" under 29 CFR Sec. 825.700.

Nothing in the FMLA prevents employers from adopting leave policies more generous than the FMLA requires; however, employers may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

State law and "Good faith defense". In FLSA2019-1, Sonderling determined that, under the circumstances outlined in an inquiry from a member of the public, residential janitors are not exempt from FLSA minimum wage and overtime requirements because the FLSA does not include an exemption for janitors and similar employees, even though New York law expressly exempts such workers from state minimum wage and overtime requirements.

Further, the WHD does not believe that reliance on state law minimum wage and overtime exemptions amounts to a "good faith defense" to FLSA noncompliance, but courts retain discretion to make that determination on a case-by-case basis.

Employer-sponsored community service. Finally, FLSA2019-2 discusses Sonderling’s take on an employer’s "optional community service program for its employees. "The facts outlined in the public inquiry confirmed that participation in the program was "voluntary and charitable," and that it does not count as "hours worked" under the FLSA, so long as the employer does not "unduly pressure" employees to participate. Those facts include:

  • The employer does not require participation and does not control or direct volunteer work;
  • Employees do not suffer adverse consequences in their "working conditions or employment prospects" if they do not participate in volunteer activities; and
  • The employer does not guarantee bonuses for volunteer work, but instead rewards the group with the most community impact, and gives that group’s supervisor discretion as to what amount, if any, to give to individual employees.

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