U.S. DOL Issues Six Opinion Letters

By Susan Milner Parrott

The U. S. Department of Labor (DOL) released six new opinion letters last week— four addressing application of the Fair Labor Standards Act (FLSA) and two addressing application of the Family Medical Leave Act (FMLA). An opinion letter is the DOL’s official opinion “on how a particular law applies in specific circumstances presented by the entity requesting the letter.” Opinion letters also provide general guidance for employers on complying with federal labor laws.  

The six new opinion letters present the following questions and conclusions: 

Voluntary wellness activities are not compensable work time. 

Question: Whether the FLSA requires compensation for the time an employee spends voluntarily participating in certain wellness activities, biometric screenings, and benefit fairs? 

DOL: Because the voluntary participation in such activities “primarily benefits” the employee and the activities are “off duty” time in that the employee is relieved from all job duties during the time he or she is participating in the activities, the time is not compensable work time. FSLA2018-20

Sales to commercial customers can come within the commissioned sales employee exemption. 

Question:  Whether the definition of “retail or service establishment” can be satisfied when the company’s sales of its technology platform are to merchant-customers? 

DOL: A “fair reading” of the retail or service establishment exemption (29 U.S.C. §207(i)) results in the conclusion that, even though the company sells its technology platform primarily to commercial entities rather than the general public and sells the platform primarily online, the company could qualify as a “retail or service establishment” under the exemption.  The sales are retail, not wholesale, and the platform is not resold.  Thus, if the sales representatives met the other requirements of 29 U.S.C. §207(i), the retail or service exemption could apply and the sales representatives would be exempt from overtime pay.  FLSA2018-21

Performing Services for Service-Oriented Reasons Supports Status as Volunteer.

Question: Whether “member examination graders” of a non-profit organization who are selected to spend one or two weeks a year grading a credentialing examination can be considered volunteers and, therefore, not entitled to compensation for their time? 

DOL: The Graders are “motivated to serve due to the professional achievement of being selected, and the opportunity to ‘give back.’”  They offer their services freely and without pressure or coercion.  The Graders can be classified as volunteers and do not need to be paid for their time and the fact that the organization will pay their travel expenses does not negate their volunteer status.  FLSA2018-22

Motion Picture Theater Exemption Applies to Food Service Staff in Theaters. 

Question: Whether employees who work in the food service operations of motion picture theaters that provide in-theater dining are covered by the motion picture theater exemption? 

DOL: The food service operations as described are “functionally integrated with the theater operations,” “incorporated as a single unit,” have integrated business operations with the theaters, and there is an “interchange of employees” between the theater and the dining operations, therefore, the exemption in Section 13(b)(27) applies. FLSA2018-23  

No-Fault Attendance Policy is not a Violation of FMLA. 

Question: Whether a no-fault policy that freezes, during the duration of the leave, the number of attendance points an employee had accrued prior to taking FMLA leave violates the FMLA?  Under the policy, the points remain on an employee’s record for 12 months of “active service.” 

DOL: If the employer does not treat other types of leave as “active service,” then the policy would not discriminate against the employee who takes FMLA leave and the employee would not be losing a benefit or accruing an additional benefit. The policy “does not violate the FMLA provided that it is applied in a non-discriminatory manner.”  FMLA2018-1-A  

Organ-Donation Surgery Can Be a “Serious Health Condition.” 

Question: Whether an employee who is in good health and chooses to donate an organ to improve someone else’s health can qualify for FMLA leave on the basis of a “serious health condition?” 

DOL:  An organ donation can qualify as a serious health condition “when it involves either ‘inpatient care’ or ‘continuing treatment’ and because organ-donation surgery commonly requires overnight hospitalization, “that alone suffices for the surgery and the post-surgery recovery to qualify as a serious health condition.” FMLA2018-2-A 

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