Max RiekerOn March 14, 2019, the Department of Labor issued three important new opinion letters that address Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) compliance. While not actually law, these letters express the DOL’s official opinion and constitute important guidance on how the law applies to certain circumstances.

The FMLA letter responds to an inquiry on “whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement.” Some employers voluntarily permit employees to exhaust some or all available paid leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying. The DOL sharply rebuked this practice. It said that while the FMLA does not prevent employers from adopting leave policies that are more generous than those required by law, employers are forbidden from designating more than 12 weeks of leave as FMLA-protected. Likewise, an employer that is subject to the FMLA may not delay the designation of FMLA-qualifying leave. Any other leave time – paid or unpaid – that an employer opts to grant its employees does not act to expand the statutory FMLA entitlement.

The DOL’s Fair Labor Standards Act letter responds to an inquiry relative to the pay schemes for residential janitors. While narrowly relating to that job classification, the opinion could be extrapolated out to apply to similarly situated employees. Essentially, the DOL said that residential janitors are not exempt from the FLSA’s minimum wage and overtime requirements because the federal statute does not contain a specific exemption for that category of employee. This is true even if state law exempts residential janitors from a state’s wage and hour requirements. The DOL’s Wage and Hour Division “does not believe that relying on a state law exemption from state law minimum wage and overtime requirements is a good faith defense to noncompliance with the FLSA.”

More broadly, the DOL’s third recent letter addresses FLSA compliance relating to the compensability of time spent participating in an employer-sponsored community service program. Here, the employer offered an optional community volunteer program which awarded a bonus to certain participating employees. The employer paid participating employees for time spent working on the volunteer activities during working hours or while they were required to be on the employer’s premises. However, volunteer hours outside of normal working hours were not compensated, except for a discretionary monetary prize awarded by supervisors based on the degree of community impact achieved. While money was clearly involved with this program, the DOL found that because participation was charitable and voluntary, those voluntary hours do not require FLSA compensation. Rather, the employer did not control or direct the volunteer work, and employees did not appear to suffer adverse consequences for non-participation. As a caveat, the DOL did warn employers that if they use a mobile application to track participation for volunteer hours, and that app exerts a degree of direction and control over the employees’ activities (such as giving instructions), that time may be deemed compensable under the statute. In other words, when an employer directs an employee to “volunteer,” that time is compensable.

As always, when in doubt, employers should consult competent counsel prior to instituting changes in the work place that could lead down a path toward a statutory violation.

Max Rieker is an attorney at Walter | Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972.