March 18, 2019

DOL Issues Latest Pronouncements on the FMLA and FLSA

Holland & Knight Alert
Phillip M. Schreiber


  • Three opinion letters from the U.S. Department of Labor (DOL) offer new insight into the agency's views on the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA).
  • Employers may not delay designating FMLA-qualifying leave, or provide additional FMLA leave, to allow employees to first exhaust other paid leave.
  • Residential janitors in multi-unit residential buildings are not exempt from FLSA, but employers may calculate hours worked by residential janitors through a reasonable agreement. Further, an employee's hours worked do not include time participating in an employer's optional community volunteer program.

The Acting Administrator of the Wage and Hour Division of the U.S. Department of Labor (DOL) issued three opinion letters on March 14, 2019, addressing compliance issues under the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA).

Employers Cannot Delay Designating FMLA-Qualifying Leave or Provide Additional FMLA Leave

In an opinion letter designated FMLA 2019-1-A, the DOL opined that an employer may not voluntarily delay the designation of FMLA-qualifying leave as FMLA leave, or provide additional FMLA-protected leave beyond 12 weeks (or 26 weeks in the case of military caregiver leave). The DOL noted that employees may seek to delay designation of FMLA leave, even where the leave is FMLA-qualifying, in order to first exhaust paid or other available leave. But the DOL explained that the FMLA does not allow the employee or the employer to decline FMLA protection for FMLA-qualifying leave, or to provide more FMLA-protected leave than the prescribed statutory period. Therefore, when an employer determines leave is FMLA-qualifying, the leave is FMLA-protected and counts toward the employee's FMLA leave allotment. Further, the employer cannot delay designating the leave as FMLA leave. Similarly, if an employee substitutes paid leave for unpaid FMLA leave, the employee's paid leave counts toward his or her FMLA allotment and the employer cannot provide additional FMLA-protected leave. While an employer must observe any benefit program or plan that provides greater family or medical leave to employees than under FMLA, any additional leave beyond FMLA-required leave does not expand the employee's FMLA-protected leave.

Residential Janitors at Multi-Unit Residential Buildings Are Not Exempt from FLSA Even if Exempt from Similar State Laws

In an opinion letter designated FLSA 2019-1, the DOL addressed several questions concerning janitors who live on-premises in multi-unit residential buildings, and who are exempt from state minimum wage and overtime requirements under state law. The DOL considered: 1) whether the FLSA guarantees minimum wage and overtime pay to residential janitors despite their exemption from similar state law requirements, 2) whether an employer's noncompliance with the FLSA in reliance on state law exemptions demonstrates sufficient "good faith" and lack of willfulness to allow the employer to avoid liquidated damages and the FLSA's three-year limitations period, and 3) how an employer may track and record a residential janitor's hours worked.

The DOL explained that residential janitors are not exempt from FLSA's minimum wage and overtime requirements, and compliance with a state law exemption does not excuse noncompliance with the FLSA. Further, the DOL stated that an employer's compliance with a state law exemption applicable to residential janitors does not automatically constitute a "good faith" defense to failure to comply with FLSA, but noted that courts have discretion to make that determination on a case-by-case basis. The DOL further explained that employers may establish the amount of an on-premises residential janitor’s working time by establishing a "reasonable agreement" to create time records to determine which on-premises hours are hours worked. This type of agreement does not require precise recordkeeping, and time records will be considered sufficient so long as they "generally coincide" with the agreement.

Hours Participating in Optional Volunteer Program Not Directed or Controlled by the Employer Are Not Hours Worked

In an opinion letter designated FLSA 2019-2, the DOL addressed whether an employee's hours participating in an employer's optional volunteer program constitute hours worked under the FLSA, particularly where there was a discretionary monetary award based on the participant's volunteer hours.

Under the program the DOL evaluated, employees are compensated for volunteer time during working hours or while they are required to be on the employer's premises, which may also include activities outside of the employee's normal working hours. At the end of the year, employees with the greatest community impact receive a monetary award that the employees' supervisor exercises discretion to distribute. In making the assessment on community impact, the company may consider the number of hours each employee volunteered. Employees are not required to participate in the program, their participation is not directed or controlled by the employer, and no employee is guaranteed a monetary award or bonus for participating in the program.

The DOL opined that participation in the optional volunteer program of the kind described above does not count as hours worked under the FLSA, provided that employees are not unduly pressured to participate. The DOL specifically noted that the employer's volunteer program does not require participation, the employer does not control or direct volunteer work, and there is no adverse consequences to an employee's working conditions or employment prospects if the employee does not participate.

Attorneys in Holland & Knight's Labor, Employment and Benefits Group stand ready to assist clients with any and all issues related to FMLA and FLSA compliance.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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