On April 12, 2018, the United States Department of Labor (“DOL”) issued two opinion letters. These letters provide guidance on how employees without "normal working hours" should be compensated for travel time involving an overnight stay and whether rest breaks provided as a “reasonable accommodation” are compensable. The DOL also issued a fact sheet detailing when teachers, coaches, and other professionals who work at higher education institutions should be paid overtime.
FLSA2018-18
FLSA2018-18 addresses the following question: for employees with irregular schedules, how do you determine the "normal work hours" for which they must be paid when travel requires an overnight stay? This letter provides employers with two methods that can be used to determine an employee's normal work hours, and whether travel time is compensable. An employer may review the employee's time records during the most recent month of regular employment and use the average start/end times during that time period. An employer may also negotiate with the employee or employee's representative and agree to what constitutes the employee's normal work hours.
FLSA2018-19
In FLSA2018-19, the DOL clarifies that rest breaks given by an employer to accommodate an employee's serious health condition predominantly benefit the employee. Because of this, they are not compensable. This ruling provides an exception to the current FLSA regulations, which state that employees must be paid during rest breaks of 20 minutes or less. The DOL explained that a 15-minute hourly rest break that has been certified by a health care provider due to the employee's serious health condition—and therefore covered by the Family and Medical Leave Act (FMLA)—is not compensable time under the FLSA. As a reminder, employees that take FMLA-protected breaks as an accommodation must still receive as many paid rest breaks as their coworkers.
Fact Sheet 17(s)
Fact Sheet 17(s): Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act (FLSA) discusses the applicability of the "white collar" exemptions common in higher education institutions. This Fact Sheet lists the following positions as typically exempt under the FLSA: (1) part-time teachers; (2) teachers who teach online or remotely; (3) teachers who spend a "considerable amount of time" in extracurricular activities (e.g., coaching); and (4) athletic coaches employed by higher education institutions.
Fact Sheet 17(s) also provides that the "learned professional exemption" applies to: (1) certified athletic trainers; (2) librarians; and (3) post-doctoral fellows. Additionally, the administrative exemption applies to: (1) admissions counselors; (2) student financial aid officers; (3) department heads; (4) intervention specialists; and (5) academic counselors.
Finally, the Part 541 exemptions apply to the following student-employees if they meet the salary tests: (1) graduate teaching assistants; (2) research assistants; and (3) student residential assistants.
Reminder:
It is important to remember that each opinion letter includes a caveat stating that the opinion offered in any specific letter is based exclusively on the facts presented for the issuance of that particular letter. Therefore, employers should refrain from generalizing the decisions set forth in any letter, or attempting to extrapolate or stretch the opinion to fit facts that differ from those addressed in the opinion letter.
Coverage: All Employers
Effective: April 12, 2018
Action Required: You may wish to consult with counsel regarding whether your pay practices are consistent with the above.
As always, please be sure to contact your HR Business Partner if you have any questions.