New Batch of Opinion Letters from the Wage and Hour Division of the Department of Labor

Written on September 05, 2018.

Last week, the Wage and Hour Division (WHD) of the Department of Labor released six opinion letters—four involving the Fair Labor Standards Act (FLSA) and two involving the Family and Medical Leave Act (FMLA). An Opinion Letter is an official ruling or interpretation of federal wage and hour laws by the WHD, and as such, they provide valuable information to employers about whether certain policies or practices are in compliance with federal law.

This latest batch of Opinion letters provide guidance on the following topics:

the application of the "retail or service establishment" exemption,
how to compensate workers for time spent attending voluntary health-and-wellness activities,
how to apply overtime exemptions for workers in movie theaters,
whether short-term employees can be considered volunteers,
whether organ donors qualify for unpaid medical and family leave, and
if an employer's no-fault attendance policy violates the Family and Medical Leave Act.

The two Opinion letters involving the FMLA clarified some interesting issues: no-fault attendance policies and organ donation.

Opinion letter FMLA2018-1-A addressed the application of an employer's no-fault attendance policy to an employee on FMLA. The letter found that no-fault employer attendance policies that apply points to employee records for absences and tardiness do not violate the FMLA if the policy freezes the points during employees' FMLA leave, provided it is applied in a nondiscriminatory manner.

Opinion letter FMLA2018-2-A addressed the question of whether an employee who donates an organ may qualify for FMLA leave, even if he/she was healthy before the donation. The answer is Yes--and he/she and may also use FMLA leave for his/her post-operative treatment. An organ donation qualifies as a serious medical condition under the FMLA when it results in an overnight hospital stay, the opinion letter said, noting that organ-donation surgery commonly requires overnight hospitalization.

Full text of the Opinion Letters can be found through this link.

Kathleen J. Jennings

Former Principal

Kathleen J. Jennings is a former principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.