DOL Issues Sextet of Opinion Letters

By on August 29, 2018

On August 28, 2018, the Wage and Hour Division (WHD) of the Department of Labor (DOL) issued six opinion letters on a variety of topics under the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). While three of those letters deal with more esoteric topics, here are summaries of the three opinion letters that have broader application.

  • WHD Opinion Letter FMLA 2018-1-A. In this letter, the WHD weighed in on whether a no-fault attendance policy that is effectively frozen while an employee takes FMLA leave violates the FMLA. Under the attendance policy at issue, employees accrued points for tardiness and absences. Points stayed on an employee’s record for 12 months of “active service,” a term which was not defined. An employee who accrued 18 points would be discharged. Employees did not accrue points for certain absences, such as FMLA leave, vacation, absences related to workers’ compensation, and other specific reasons. An employee returning from FMLA leave (or other types of specified leave) would have the same number of points as when that employee commenced the leave. The Administrator opined that, such an attendance policy applied in a non-discriminatory manner would not violate the FMLA, but added that if an employee who took other non-FMLA leave had that leave time counted towards the 12 months of “active service,” such an arrangement would violate the FMLA because it would discriminate against the employee on FMLA leave.
  • WHD Opinion Letter FMLA 2018-2-A. The second opinion letter addressed the question of whether organ-donation qualified as a “serious health condition” under the FMLA where the donor is otherwise in good health but chooses to donate for the benefit of another. Such organ donation would require overnight stays in the hospital. Section 2611(11) of the FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves” either “inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment by a health care provider.” Unsurprisingly, the Administrator opined that organ donation surgery, or the post-operative recovery usually requires overnight stay for either “inpatient care” or “continuing treatment” such that organ donation can be a serious health condition under the FMLA.
  • WHD Opinion Letter FLSA 2018-20. This letter considers the question of whether employers must compensate employees for time that they spend participating in voluntary wellness activities, biometric screenings, or health fairs held either during or outside of working hours. Employees may participate in such activities as health education, blood pressure and cholesterol screenings, Weight Watchers or gym classes, etc. to reduce potentially their health insurance premiums. None of the activities were mandatory and the employer received no direct financial benefit from the employee’s participation in the previously mentioned activities. Because these activities were voluntary and predominantly benefitted the employee, the time employees spend participating in these programs was not considered compensable under the FLSA whether it was during or outside of work hours.
  • The remaining three opinions letters address the following issues: application of the movie theater overtime exemption to a movie theater that also offers dining services; application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform; and volunteer status of nonprofit members serving as credentialing examination graders.

If you have questions with the FMLA, the FLSA, or other employment issues, please contact me at or 804.698.6229.