DOL Wage & Hour Issues FMLA, FLSA Opinion Letters

An opinion letter is an official, written opinion by the division on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter. The requesting parties' names are not included in the letters to protect their privacy.

The U.S. Department of Labor's Wage and Hour Division has issued three new opinion letters that address compliance issues related to the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA).

An opinion letter is an official, written opinion by the division on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter. The requesting parties' names are not included in the letters to protect their privacy, the letters state.

The opinion letters issued March 14 were:

  • FMLA2019-1-A: provides an opinion on the obligation to designate FMLA-qualifying leave and prohibition on expanding FMLA leave. This letter states that nothing in the FMLA prevents employers from adopting more generous leave policies than those required by the law, but an employer may not designate more than 12 weeks of leave -- or more than 26 weeks of military caregiver leave -- as FMLA-protected.
  • FLSA2019-1: clarifies FLSA wage and recordkeeping requirements for residential janitors and the "good faith" defense. This letter states that the division does not believe relying on a state law exemption from state law minimum wage and overtime requirements is a good faith defense to non-compliance with the FLSA, but a court has discretion to make that determination on a case-by-case basis.
  • FLSA2019-2: addresses FLSA compliance related to the compensability of time spent participating in an employer-sponsored community service program. This letter asked whether the time spent by employees who participate in the employer's optional volunteer program qualifies as hours worked under the FSLA, and the division determined that they do not.
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