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US Department of Labor Publishes Two Opinion Letters This Month

16 Apr

On April 12, 2018, the United States Department of Labor issued opinion letters that provide guidance on how employees without “normal working hours” should be compensated for travel time involving an overnight stay and whether rest breaks provided as a reasonable accommodation are compensable.

Interpretations Under the Federal FLSA …
CA Companies Frequently Follow These Federal Policies

When Travel Time Is Compensable:

The first opinion letter, FLSA2018-18, confirms long-standing DOL positions regarding when travel time is compensable under the Fair Labor Standards Act (FLSA) (e.g., hotel to worksite travel is a normal non-compensable commute).

Handling Irregular Schedules:
The Dilemma: For employees with irregular schedules, how do you determine “normal work hours” during which they must be paid when travel requires an overnight stay?

Suggested Approach: Employers have two different methods to reasonably ascertain an employee’s normal work hours and determine whether travel time is compensable.

  1. The employer may review the employee’s time records during the most recent month of regular employment and use the average start/end times during that time.
  2. Employers may also negotiate with the employee or employee’s representative and agree to what constitutes the employee’s normal work hours.
  3. If employers use either of these methods, the DOL will not find FLSA violations when employees are not paid for travel time occurring outside these normal working hours on work or non-work days.

Rest Breaks:
A second DOL letter, FLSA2018-19, clarifies when:

  1. Rest breaks given by an employer to accommodate an “employee’s serious health condition” predominantly benefit the employee and are not compensable as a result.

This ruling provides an exception to the current FLSA regulations that allow that employees must be paid during rest breaks of 20 minutes or less.

  1. The DOL states that a 15-minute rest break each hour (certified by a health care provider) due to the employee’s serious health condition is and therefore covered by the Family and Medical Leave Act (FMLA) would not be compensable time under the FLSA.
  2. Notably, employees that take FMLA-protected breaks as an accommodation must still receive as many paid rest breaks as their coworkers

While these are only interpretations under the Federal FLSA, California usually follows these federal policies. These letters signal that the DOL will soon be issuing employers much-needed assistance and guidance for complying with the FLSA and other new regulations and laws.

The Bottom Line:

Even though the regulation is not effective these opinions apply to all California employers and their employees. CalWorkSafety welcomes the opportunity to assist all employers in preparing for the implementation
of these ‘opinions’ once they become law … which is likely.

CALL US TODAY – LET’S TALK ABOUT THIS AND DEVELOP REAL SOLUTIONS FOR YOU

Visit our website: http://www.calworksafety.com or Call: 949-533-3742

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Don’t Let FMLA Leave Cause You Problems

5 May

Employers with 50 or more employees, (for 20 workweeks in the current calendar year or the preceding calendar year) are covered by the Federal Family Medical Leave Act – and in California are also regulated by the state’s California Family Rights Act. Both laws require eligible employees to be given time off under certain circumstances without pay for their own illness, caring for family members, and certain other situations. While the leave generally is for up to 12 weeks maximum within a one year period, the employer is obligated to continue the employee’s participation in group health insurance on the same basis as if work had continued..
Recently employers have experienced problems when they felt employees were out on leave for too long a period of time, or the employee was absent without notification to the employer.
An employer can protect themselves from many of these difficulties, but only if:
1. The required FMLA poster is displayed, and the poster was recently updated by the US Department of Labor effective March 8, 2013.
2. Notice about FMLA and requirements of the employer are provided to employees, most effectively done by a well written section in an Employee Handbook
3. When an employee requests time off – notification of approval or denial of FMLA leave and FMLA rights must be provided. This is an area many employers fail to observe.
4. You also should have a “no call/no show = voluntary quit” policy so employees who do not follow procedures and call in on time when they are going to be absent from work are treated as having quit their job. Courts have upheld this rule,
A copy of the latest FMLA poster, as well as model forms for the required notices are available at the US Department of Labor’s website: http://www.dol.gov/whd/fmla