On Tuesday, August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the issuance of six new opinion letters covering a variety of issues under the FMLA and FLSA. Specifically, the opinion letters address the following issues:

  • “No-fault” attendance policies and roll-off of attendance points under the FMLA
  • Organ donors’ qualification for FMLA leave
  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities
  • Application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform
  • Application of the movie theater overtime exemption to a movie theater that also offers dining services
  • Volunteer status of nonprofit members serving as credentialing examination graders

FMLA Opinion Letters

  • FMLA2018-1-A : “No-fault” attendance policies and roll-off of attendance points In this Opinion Letter, WHD was presented with an employer policy that effectively freezes, throughout the duration of an employee’s FMLA leave, the number of attendance points that the employee accrued prior to taking his or her leave. In other words, during FMLA leave, an employee would not accrue attendance points but likewise any points that had been accumulated prior to the FMLA leave would not roll off (as they ordinarily would every 12 months for “active” employees.) As a result, an employee returns from FMLA leave with the same number of points that he or she had accrued prior to the leave, and the points may remain on his or her record for more than the usual twelve months. WHD endorsed this policy as complying with the FMLA so long as the same policy applied to other forms of leaves of absence as well. WHD concluded that under the policy, “an employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled.” According to WHD, “such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.”
  • FMLA2018-2-A: Whether organ donation is a serious health condition In this Opinion Letter, WHD concluded that surgery for organ donation can qualify as a serious health condition under the FMLA. when it involves either “inpatient care” under § 825.114 or “continuing treatment” under § 825.115.

FLSA Opinion Letters

  • FLSA2018-20: Compensability of time spent attending employer-sponsored benefits fairs In this Opinion Letter, WHD concluded that an employee’s voluntary participation in biometric screenings, wellness activities, and benefits fairs does not constitute compensable worktime under the FLSA because the activities predominantly benefit the employee, where:
    • The activities provided direct financial benefit to only the employee;
    • The activities also help the employee make more informed decisions about matters unrelated to his or her job;
    • Participation is wholly optional for the employee;
    • The employer never requires participation; and
    • The employer likewise does not require the employee to perform any job-related duties while he or she participates in the activities.

FMLA Opinion Letters

  • FLSA2018-21: Retail or service establishment and the 7(i) exemption In this Opinion Letter, WHD concluded that the employer at issue was a “retail or service establishment” within the meaning of the 7(i) exemption when it “sells a technology platform to merchants that enables online and retail merchants to accept credit card payments from their customers from a mobile device, online, or in-person,” “the technology payment platform ‘cannot be resold, as the platform is designed for each specific merchant,’” and “the sale of this platform constitutes 100 percent of the employer’s sales.” As a result, WHD concluded that the FLSA’s retail or service establishment exemption will apply to any of the employer’s employees whose compensation otherwise met the requirements for the exemption (i.e., their regular rate of pay exceeds one and one-half times the applicable minimum wage for workweeks in which they work overtime, and their commissions constitute more than half of their earnings.) In reaching this conclusion, WHD relied heavily on the Supreme Court’s holding in Encino Motorcars, LLC v. Navarro that exemptions under the FLSA deserve a “fair (rather than narrow) interpretation.”

Two other FLSA Opinion Letters issued on Tuesday, August 28, 2018 would appear to have far less widespread application. In FLSA2018-22, WHD concluded that certain nonprofit members serving as global credentialing examiners could be considered volunteers depending on their motivation for participating. In FLSA2018-23, WHD concluded that an employer whose food services operations were functionally integrated with its movie theatre operations was entitled to the FLSA’s motion picture theater exemption in Section 13(b)(27).