On April 12, 2018, the Wage and Hour Division (WHD) of the Department of Labor reinstituted its practice of issuing opinion letters, providing the Agency’s interpretation of discrete issues under the Fair Labor Standards Act. The Obama administration had suspended the longstanding practice nearly a decade ago. Two of the opinion letters issued on April 12 address issues of compensability, including the compensability of short work breaks taken by employees for health-related reasons under the FMLA, and for certain time spent traveling for work.

A. Short Breaks Under the FMLA Are Not Compensable

In Opinion Letter FLSA 2018-19, the WHD addressed the question of whether a non-exempt employee’s 15-minute rest breaks, certified by a physician as necessary under the FMLA for a serious health condition, are compensable. The factual scenario considered by the WHD involved an employee who required a 15-minute break every hour, resulting in the employee’s only working six hours during an eight hour shift.

The Opinion Letter explained that the U.S. Supreme Court previously has ruled that the compensability of an employee’s time depends on “[w]hether [it] is spent predominantly for the employer’s benefit or for the employee’s.” Generally, courts applying this rule have found that short rest breaks of up to 20 minutes are compensable, as they primarily benefit the employer by providing a more efficient and re-energized employee.

The WHD explained that the breaks in question here differed, however, as they were provided to accommodate the employee’s serious health condition. Accordingly, the Opinion Letter concluded that the FMLA-protected breaks predominantly benefited the employee and, therefore, were not compensable.

Finally, the WHD warned that employers should be careful to provide employees who take FMLA-protected breaks with as many compensable rest breaks as their co-workers. In other words, employers should not penalize employees who utilize breaks for FMLA-related reasons with fewer paid breaks.

B. The Compensability of Travel Time Depends on the Circumstances

In Opinion Letter FLSA 2018-18, the WHD examined three separate scenarios involving the travel time of hourly technicians who do not work set schedules or at fixed locations, but rather work varying hours and at different customer locations each day.

In Scenario 1, the WHD addressed the compensability of a technician’s travel by plane on a Sunday from his home state to a different state in order to attend a training class beginning at 8:00 a.m. on Monday at his employer’s corporate office. The WHD explained that such travel away from the employee’s home community constitutes worktime when it cuts across the employee’s regular working hours, even on a non-work day like Sunday. Thus a “9 to 5” employee would need to be paid for any such travel time on Sunday between those hours. Because the scenario presented involved an employee with an irregular schedule, however, the WHD provided various alternative methods for calculating the “normal” work hours for employees who do not work a regular, set schedule. These included: reviewing the employee’s time records during the most recent month to determine if they reveal “typical work hours” during that month; calculating average start and end times during the most recent month; and, in rare cases in which an employee truly has no normal work hours, negotiating with the employee to determine a reasonable amount of compensable time for travel away from the employee’s home community.

Scenarios 2 and 3 addressed travel by technicians: 1) from home to the office in order to get job itineraries, followed by subsequent travel to customer locations; and 2) directly from home to multiple different customer locations. The WHD explained that both scenarios dealt largely with ordinary commutes to and from work. In both instances, whether traveling from home to the office or from home to the first customer location, “compensable work time generally does not include time spent commuting between home and work, even when the employee works at different job sites.” Of course, once the employee has arrived at his or her first job site, all subsequent travel between job sites is compensable.

The issuance of these opinion letters is a promising development for employers. It would appear to indicate that the WHD is seeking to provide employers with clarity regarding difficult issues under the FLSA and proactively assist them in complying with the law.

In general, the Family and Medical Leave Act (“FMLA”) provides that eligible employees may take twelve weeks of unpaid leave in a twelve-month period for the serious health condition of the employee, the employee’s spouse, the employee’s parents or the employee’s children. Thus, if an employee normally works five, eight-hour days a week, and the employee misses one eight-hour day because of an FMLA event, the employee uses one-fifth of a week of FMLA leave. FMLA permits an employer to convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee’s total normally scheduled hours. Although calculating the twelve-week period is simple enough when the employee works a regular schedule and takes leave in full day increments, complications arise when the employee’s work hours vary, and the employee takes intermittent leave. An example of this problem occurs when an employee is required from time to time to work mandatory overtime and misses the overtime because of an FMLA event.

The issue of calculating mandatory overtime as part of an employee’s FMLA leave entitlement was recently addressed by the United States Court of Appeals for the Eighth Circuit in Hernandez v. Bridgestone Ams. Tire Operations, LLC, 822 F.3d 1001 (8th Cir. 2016). In that case, an employee who was required to work mandatory overtime missed several overtime shifts to care for the serious health condition of his child. The employer included the mandatory overtime as FMLA time but did not include the hours when calculating the employee’s leave entitlement. After the employee had exhausted all his FMLA leave, and took subsequent, unexcused absences to care for his child, he was discharged because of his attendance. The employee sued the employer alleging that it had interfered with his FMLA entitlement. The Court of Appeals concluded that the employer was correct in counting the missed overtime hours against his FMLA entitlement. Notwithstanding this finding, the Court held that employer still had improperly interfered with the employee’s FMLA rights because, in calculating the number of hours to which the employee was entitled under FMLA, the employer did not include mandatory overtime. In other words, the employer counted the missed mandatory overtime in calculating FMLA usage but did not count mandatory overtime in calculating the amount of FMLA leave to which the employee was entitled.

In a situation like Bridgestone, if an employee’s schedule varies from week to week because of mandatory overtime to such an extent that an employer is unable to determine with certainty how many hours the employee would otherwise have worked but for the taking of FMLA leave, a weekly average of hours scheduled over the twelve months prior to the beginning of the leave (including any hours for which the employee took leave of any type) are to be used in calculating the employee’s leave entitlement.  For example, if an employee regularly scheduled to work 50 hours per week takes an entire week of FMLA leave, the whole 50 hours can be counted as FMLA time used, but that may or may not convert to one week of leave depending on how many hours are considered to be in the employer’s “work week.”  If the employer’s average work week is 50 hours, the FMLA allotment would also be one week; if the average week is 55 hours, the allotment would be .91 weeks; if the average week is 40 hours, the allotment would be 1.25 weeks.

Ultimately, the Bridgestone decision is an important reminder that employers who count missed overtime for usage purposes must also count overtime to calculate FMLA entitlement.