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► DOL Releases Two New Opinion Letters On Breaks And Travel Time

Last June, we reported on the U.S. Department of Labor (DOL) announcement that it would reinstate the use of Opinion Letters, an interpretive practice that had been replaced by the issuance of Administrator Interpretations during the Obama years.  Opinion Letters provide valuable guidance to employers, as they deal with real-life, day-to-day issues that employers face in the workplace, not simply legal principles that may be difficult to apply to real world situations.

On April 12, the DOL issued two new Opinion Letters: FLSA2018-19 and FLSA 2018-18. In the letters, key questions were addressed regarding the interplay of the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) regarding break time and the compensability of travel time for nonexempt employees.

#1: Are Short Rest Breaks Compensable When They’re Taken Under The FMLA?

In FLSA2018-19, the DOL addressed an interesting question regarding which rules apply when an employee’s rest breaks—short breaks of less than 20 minutes that would otherwise clearly be compensable—are being taken due to the employee’s continuing serious health condition, as protected by the FMLA.

In the situation presented, the employees’ medical certifications required them to have an hourly break of at least 15 minutes. These breaks amounted to a total of 2 hours’ lost work over the course of the day, so the employer essentially asked which principle prevails—the FLSA’s requirement that short breaks be compensable or the FMLA’s provision of leave on an unpaid basis?

In the Opinion Letter, the DOL reminds us that the FLSA does require short rest breaks up to 20 minutes in duration to be compensated, as such breaks are primarily to the benefit of the employer. However, in limited circumstances—if rest breaks, even those of less than 20 minutes, primarily benefit the employee—then they are not compensable. (An example of a rest break that primarily benefits the employee would be an accommodation break needed to assist with an employee’s chronic back pain.)

The FMLA-protected breaks considered in this situation are necessary to accommodate the employee’s serious health condition—predominately benefitting the employee—thus, the DOL ruled, they are not compensable under the interpretation of the FLSA.

Shoring up this analysis, the FMLA itself also expressly provides that FMLA-protected leave may be unpaid. (29 U.S.C. § 2612(c). Further, this unpaid basis has been considered and permitted in conjunction with the requirements of the FLSA.

Note, for example, that unpaid leave under the FMLA is afforded special treatment in its interaction with the FLSA’s salary basis rule for determining exempt status. An exempt employee will not lose his or her exempt status if his or her weekly salary must be adjusted to account for leave taken on an unpaid basis under the FMLA.

In conclusion, the DOL does remind us that employees exercising their right to FMLA are entitled to the same benefits they would receive if they were not taking FMLA leave. So, if employees are regularly entitled to two paid rest breaks during the work day, then the FMLA-protected employees must receive this same compensable time. However, the remaining six break periods may be unpaid and counted toward the worker’s annual FMLA entitlement.

#2: Is Travel Time Compensable for Technicians Paid on an Hourly Basis?

The second Opinion Letter, FLSA 2018-18, addresses compensability of travel time for certain nonexempt workers.

The key to identifying whether travel time during the workday is compensable is determining whether the employees are engaged in travel as part of the employer's principal activity or for the convenience of the employer. Whether time spent traveling is paid work time for nonexempt employees depends on the type of travel involved. Travel time that is work time is subject to both the minimum wage and overtime pay requirements of the FLSA.

In FLSA2018-18, the DOL addressed several questions about when travel time is compensable for technicians paid on an hourly rate under the various travel scenarios excerpted below:

Scenario 1: An hourly technician travels by plane from home state to New Orleans on a Sunday for a training class beginning at 8:00 a.m. on Monday at the corporate office. The class generally lasts Monday through Friday, with travel home on Friday after class is over, or, occasionally, on Saturday when Friday flights are not available.

According to 29 C.F.R. § 785.39, travel that keeps an employee away from home overnight is designated as “travel away from home.” Travel away from home is paid work time when it “cuts across the employee's workday.” This is because the employee is deemed to be simply substituting travel for other duties.

The time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on nonwork days. It is important to note that the DOL does not consider “time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile” as compensable work time.

But what happens when there is no regular workday? When an employer claims that there is no regular workday, the DOL generally finds that “a review of employees’ time records usually reveals work patterns sufficient to establish regular work hours.” The DOL does state, nonetheless, that there are occasionally employees who have no regular workday. If this is the case, then there are a few ways to ascertain what travel time is compensable.

The first “method is to review the employee’s time records during the most recent month of regular employment. If the records reveal typical work hours, the employer may consider those as the normal hours going forward unless some subsequent material change in circumstances indicates the normal hours have changed.”

If the review of one month’s records “do not reveal any normal working hours, the employer may instead choose the average start and end times for the employee’s workdays.”

Alternatively, when there are “truly” no normal work hours, and the DOL warns this situation is rare, the employer and employee “may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.”

These three options for determining compensable travel time when an employee has no normal working hours or when the employee’s normal working hours are difficult to ascertain, should assist employers in such unusual situations.

Scenario 2: An hourly technician travels from home to his or her home office to get a job itinerary and then travels to the customer location. The travel time from home to office varies depending on where the technician lives and can range from 15 minutes to 1 hour or more. All of this travel is in an assigned company vehicle.

Under the Portal to Portal Act, normal commuting time is not compensable. Traveling to and from where work is performed at the beginning and end of the workday is not considered work time. Therefore, the commuting time from home to the home office need not be paid time. Commuting includes the time spent walking from the parking lot to the worksite.

Using an assigned company vehicle on the commute from home to the home office does not render this commuting time compensable under 29 USCS § 254 “if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee….” This exception also applies to time spent in activities incidental to the use of the vehicle for commuting, such as stopping for gas.

How about the time traveled from the home office after the itinerary is picked up to the jobsite? According to 29 CFR 785.38, when an “employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked regardless of contract, custom, or practice.”

Therefore, in a situation where an employee travels from home to the home office to pick up an itinerary, then travels to the first jobsite, the travel from the home office to the first jobsite is compensable.

Scenario 3: Hourly technicians drive from home to multiple different customer locations on any given day.

According to 29 CFR 785.38 “travel from job site to job site during the workday, must be counted as hours worked.” As stated above, the commute from home to the first job site is not compensable. After that, then the travel from jobsite to jobsite during the day is compensable. The use of the company vehicle does not negate the compensability of the travel time.

The issue of whether to pay employees for travel time can be confusing. Remember: traveling to and from where work is performed at the beginning and end of the workday is not work time. This is true whether the employee works at a fixed location or at different jobsites. Commuting includes the time spent walking from the parking lot to the worksite. Employers may agree to pay for ordinary commuting time.

However, such time does not have to be counted as hours worked and is not subject to the minimum wage and overtime requirements. If an employee has to report to a central meeting site to pick up equipment, supplies, or coworkers, or to get instructions or an itinerary, work time starts at that location. Time that an employee spends traveling as part of his or her principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked.

By Holly K. Jones, JD, and Susan E. Prince, JD, MSL. Ms. Jones and Ms. Prince are Legal Editors for BLR’s human resources and employment law publications.



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