U.S. Department of Labor Publishes Opinion Letters to Clarify Compliance with Fair Labor Standards Act

May 4, 2018


The Fair Labor Standards Act (FLSA) is the federal law governing the payment of minimum wage and overtime.  The FLSA is enforced by the Wage and Hour Division (WHD) of the U.S. Department of Labor.  While the requirements of the FLSA are set by statutes and regulations, officials of the WHD may provide official written opinions of what the FLSA requires in fact-specific situations, at the request of interested parties. On April 12, 2018, the WHD issued two opinion letters to provide guidance on how employers can ensure compliance with FLSA rules governing compensable travel time and breaks.

The first opinion letter issued by the WHD addresses when an hourly employee’s travel time is compensable under the FLSA. (No. FLSA 2018-18). Generally, travel time is compensable if it occurs during an employee’s normal working hours. However, it can be difficult to calculate what comprises an hourly employee’s “normal working hours” when the employee doesn’t have a rigid work schedule. The WHD opinion recommends a few different methods that an employer may use to reasonably determine an employee’s normal work hours for purposes of determining compensable travel time:

  • If an employee’s time records from the most recent months reflect typical hours, use those hours until there is a material change in the employee’s circumstances.
  • If an employee’s time records do not show a pattern, the employer can choose an average start and end time for the employee’s workdays.
  • In the rare case in which employees truly have no normal work hours, the employer and employee (or the employee’s representatives) may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.

The WHD opinion notes that this is not an exhaustive list of all of the permissible methods for determining an employee’s normal start times or end times under the FLSA. However, when an employer reasonably uses any of the above methods to determine an employee’s normal working hours for purposes of determining compensable travel time, “the WHD will not find a violation for compensating employees’ travel only during those working hours.”

The second opinion letter issued by the WHD (FLSA 2018-19) considers whether an employer covered by the FLSA and Family Medical Leave Act (FMLA) is required to compensate an employee’s rest breaks that are required due to the employee’s serious health condition.

Under the FLSA, hourly employees must be paid for occasional short breaks of up to 20 minutes during the workday. This rule is based on the grounds that such breaks are primarily for the benefit of the employer because they give employees time to reenergize, promoting an efficient and productive workplace.

The WHD opinion letter distinguishes between these “occasional short breaks” provided by the employer to promote productivity versus the scenario where an employee needs to take frequent breaks throughout the workday due to a serious health condition. 

The WHD acknowledges that while employers may be required to provide certain employees with additional rest breaks pursuant to the FMLA, these breaks are mainly for the benefit of the employee and, as such, are generally not compensable.

For example, the FMLA may require an employer to give an employee with a serious health condition additional breaks throughout the day as an accommodation to make it possible for the employee to perform their job duties. However, the employer is not required to pay the employee for any additional breaks that exceed the FLSA breaks provided to other employees.

Employers are encouraged to consider how these recent opinions might impact their employment policies and practices. If you have any questions on this topic or need assistance, please contact our Labor & Employment Law Practice Group. We encourage you to subscribe to our Labor & Employment E-Briefs to get the latest HR news, tips, and updates.