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DOL Clarifies Compensability of Break Time and Travel Time

By Net Assets posted 05-01-2018 02:16 PM

  
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Human Resources |

Article by Grace H. Lee, Esq.

Two Department of Labor opinion letters issued April 12 provide clarity on issues that often perplex independent schools in relation to the Family and Medical Leave Act and the Fair Labor Standards Act. The letters are the first from DOL’s Wage and Hour division since 2009 and represent a decided Trump-era break from the generally more worker-friendly Obama Administration.

The first opinion letter addresses frequent breaks taken by nonexempt employees. Under the FLSA, breaks of up to 20 minutes during the workday are generally paid. In this case, however, 15-minute breaks taken by nonexempt employees under the FMLA, following a doctor’s orders for a serious health condition, could be treated as unpaid breaks. The DOL opinion letter noted that such breaks are FMLA-protected accommodations provided exclusively for the benefit of the employee and can be unpaid. Of course, if the employer provided paid breaks pursuant to policy or state law, the employee would be entitled to those paid breaks and any additional breaks taken for FMLA accommodations could be unpaid.

The second opinion letter addresses travel time and tracking “working hours” for nonexempt employees. In general, if a nonexempt employee travels for work and does not perform any work during the travel time, that time is compensable only when it occurs during the employee’s normal work schedule, even if it occurs on a day the employee is not scheduled to work. If the employee does not have a normal work schedule, the DOL outlined three ways that employers can approximate the work schedule to determine whether travel time is compensable:

  • Review the employee’s time records during the most recent months and use the typical hours worked.
  • If the records do not reveal a pattern, choose an average start and end time. 
  • Reach an agreement with the employee regarding the employee’s normal working hours

While the DOL opinion letters offer clarity, when making decisions regarding an employee’s use of FMLA or employee compensation, schools are advised to also look at how these opinion letters intersect with employee handbook policies, state and local laws, past practice and school culture.

Grace H. Lee is NBOA's vice president, legal affairs.

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