After a nine year hiatus, the Wage and Hour Division of the Department of Labor (“DOL”) recently resumed its longstanding practice of issuing opinion letters to help employers in interpreting laws like the Family and Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”). In an April 12, 2018 press release issued by the DOL, Secretary Acosta stated that an opinion letter is an “official document authored by the [Wage and Hour Division] on how a particular law applies in specific circumstances presented by the person or entity requesting the letter.” The purpose of the opinion letter is to “provide clarity,” which should help increase employer compliance.
A recently-issued opinion letter tackled a unique question about the interaction between the FMLA and the FLSA in the context of FMLA-protected rest breaks. The question presented was whether 15-minute breaks taken every hour for an employee’s serious health condition must be paid or unpaid. In the scenario presented in the opinion letter, the 15-minute breaks qualified as intermittent FMLA leave.
The DOL opined that the FMLA-qualifying breaks (totaling 2 hours per 8-hour shift) were “not compensable.” In reaching this conclusion, the DOL pointed out that under the FLSA, short rest breaks up to 20 minutes in length generally must be paid because the DOL views these breaks as primarily benefitting the employer because they “promote the efficiency of the employee.” However, the DOL said that in some circumstances, short rest breaks may primarily benefit the employee and therefore are not compensable. Under the facts presented in the opinion letter, the DOL opined that because the 15-minute breaks were required 8 times per day and were attributed solely to the employee’s serious health condition, the breaks predominantly benefited the employee and therefore did not need to be paid despite the general rule on paid breaks under 20 minutes contained in the FLSA regulations. The opinion letter relied in large part on a federal case, Spiteri v. AT&T Holdings, Inc., 40 F. Supp. 3d 869 (E.D. Mich. 2014), where the court found an employee was not entitled to frequent (or unlimited) paid breaks to accommodate the employee’s back pain because the breaks predominantly benefitted the employee. The DOL also noted in the opinion letter that because the breaks were FMLA-protected, they did not need to be paid.
Importantly, the DOL reminded employers that employees who take FMLA-protected breaks must still be compensated for the same number of breaks taken by coworkers. 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 be paid for two 15-minute rest breaks during his or her 8-hour shift. The remaining six breaks need not be paid.
Although not binding, this opinion letter provides guidance for employers dealing with FMLA-mandated breaks. Employers should comply with the requirements of both the FMLA and FLSA when dealing with these types of breaks, and keep track of these breaks for purposes of calculating intermittent FMLA leave. In addition, prior to considering whether FMLA-mandated breaks are paid or unpaid, a careful review of the break schedules of employees in the same job position or group should be conducted to ensure that employees who take FMLA-mandated breaks are receiving the same number of paid breaks as their coworkers.