At long last, new USDOL Opinion Letters are bursting forward. Like Spring. The agency just issued three new letters on a variety of topics, including one of my favorites, travel time. The other letters address issues of compensable break time as well as the kinds of lump-sum payments that could be garnished for child support.
The new Labor Secretary stated early on that the agency was going back to issuing these letters. I applauded that decision at the time. These letters reflect the agency’s interpretations of various issues under the FLSA, some of them arcane and off-beat, issues that existing case law does not address. Under President Obama, the agency ceased issuing opinion letters, but favored so-called Interpretations, which were more global in scope.
I want to focus on the travel time letter, FLSA 2018-18. The inquiry of the submitter was whether the employer had to pay crane technicians, who worked irregular hours, for their travel time under three scenarios: 1) an employee who travels from his home state on Sunday for a training class commencing at 8AM on Monday; 2) an hourly technician who travels from his home to his work location and then to a job site; and, 3) a worker who travels from job site to job site many times during a single day.
The USDOL response was that the first scenario mandated payment for the employee if his hours of travel cut across their normal workday (which is consistent with the FLSA regulations on this point). The Letter provided three methods to reasonably determine normal work hours for employees with irregular schedules to determine whether the time was compensable.
The first method involves a review of the worker’s hours during the most recent month of employment so that a final determination could be made on the compensability of the travel time. The second provides that if typical work hours cannot be determined, the employer may choose the average start and end times for the workday. Lastly, where there are truly no normal work hours, the employer and employees could negotiate a reasonable amount of time in which travel outside the home communities was compensable.
I know that plaintiff side lawyers and worker advocates may feel that such letters amount to “get out of jail free” cards employers, who want to avoid liability. The opposite is the case. The letters provide guidance so that employers may know how to comply with the law in various situations. That the following of the guidance in a letter gives the employer the protection of the safe harbor provisions in wage hour law is a justly deserved by product.
Keep writing, Mr. Wage-Hour Administrator…