May 1, 2018Client Alert

DOL Clarifies Compensability of Travel Time for Employees with Irregular Work Hours and FMLA-Protected Breaks

In April 2018, the U.S. Department of Labor (DOL) issued opinion letters regarding 1) compensability of travel time under the Fair Labor Standards Act (FLSA) and 2) whether 15-minute rest breaks required every hour by an employee’s FMLA-covered serious health condition must be paid under the FLSA.  See FLSA2018-18 and FLSA2018-19. An opinion letter is an official document authored by the DOL on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. DOL opinion letters represent official statements of DOL policy and are often cited in court decisions as persuasive but non-binding authority.

Compensability of Travel Time for Employees with Irregular Work Hours

First, the DOL explained how to determine normal or “regular” work hours during which employees must be paid when travel requires overnight stay, which was previously an unanswered question with respect to employees with irregular work hours. As a general rule, compensable worktime does not include time spent commuting to or from work. At times employers require that employees travel away from their home communities overnight, e.g., for extended business trips, training conferences, or remote projects requiring overnight stays. In these circumstances FLSA regulations provide that “[t]ravel away from home is clearly worktime when it cuts across the employee’s workday.” For example, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. According to the most recent DOL opinion letter, if an employee works irregular hours, the employer may use the following methods to determine regular work hours:

  1. 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.
  2. In the rare case in which employees truly have no normal work hours, 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.

If employers reasonably use these methods to determine employees’ normal working hours for purposes of determining compensable travel time, the DOL will not find a violation for compensating employees’ travel only during those working hours.

Compensability of FMLA-Protected Breaks

Second, as a general rule under the FLSA, employees must be paid for rest breaks up to 20 minutes in length as such breaks are considered to benefit the employer; however, the DOL opinion letter clarified that FMLA-protected 15-minute rest breaks each hour due to an employee’s serious health condition are not compensable because such breaks predominantly benefit the employee. However, the DOL noted that employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. For example, if an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, an employee needing 15-minute rest breaks every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift. 

While the DOL opinion letters help provide clarity on the DOL’s position on these issues, they do not reflect how either matter would be analyzed under state laws.  Before utilizing these opinions for your workplace, please make sure to verify all applicable law.

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