DOL Issues New Opinion Letters on FLSA and CCPA

Labor & Employment @lert

Date: April 19, 2018

The U.S. Department of Labor (DOL) this week issued a set of new opinion letters for the first time in nearly 10 years. The letters address:

  • whether employees who take 15-minute breaks every hour due to their own continuing serious health conditions should be paid during those breaks;
  • scenarios involving when time spent traveling for work should be paid; and
  • garnishment limits related to withholdings for child support under Title 3 of the Consumer Credit Protection Act (CCPA).

The DOL found that the answer to the question of whether or not an employee must be paid for 15-minute breaks every hour during an eight-hour shift due to their own continuing serious health condition turned on whether or not the breaks predominately benefited the employee or the employer. The Fair Labor Standards Act (FLSA), as a general matter, requires employers to compensate employees for their work. Short rest breaks up to 20 minutes in length have been determined to primarily benefit the employer because short breaks promote employees’ efficiency or are deemed to predominately benefit the employer by giving the company a reenergized employee. See 29 C.F.R. 785.18. However, breaks as described above would be covered by the Family and Medical Leave Act (FMLA) and thus differ from ordinary rest breaks commonly provided to employees. Because FMLA-protected breaks are given to accommodate the employee’s serious health condition, the DOL’s acting administrator opined that such breaks need not be compensated because the FMLA expressly provides that FMLA-protected leave may be unpaid and provides no exceptions for breaks up to 20 minutes in length. See 29 U.S.C. 2612(c). That said, employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. See 29 C.F.R. 825.22(c).

Regarding the question of whether or not an hourly technician must be paid for travel by plane from his home state to another, the DOL found that the answer turned on whether the flight cut across the employee’s regular work day. If yes, then the time must be paid. However, the DOL’s opinion letter stated that it does not consider time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus or automobile as work time. Another inquiry involved whether or not travel from home to the employee’s home office to get a job itinerary and then travel to a customer location is compensable. The DOL opined that compensable time does not generally include time spent commuting between home and work but does cover travel between job sites after arriving at work. 29 C.F.R. 785.38. Use of a company vehicle, in and of itself, does not otherwise make noncompensable travel time compensable. 9 U.S.C. 254(a).

The DOL found that the answer to the question of whether or not lump-sum payments to workers should be garnished for child support under the CCPA turned on the form of the payment. In its opinion letter, the DOL discussed 18 different forms of payment, including bonuses, profit sharing, attendance awards, holiday pay and workers’ compensation, noting that 15 of the 18 different forms of payment should always be garnished. The central inquiry to assessing whether a certain lump-sum payment is earnings and subject to garnishment limits under the CCPA turns on whether or not the amount paid by the employer is in exchange for personal services. If the lump sum payment is unrelated to personal services rendered, then it is not earnings under the CCPA.


For more information, please contact:

M. Scott Young

or any member of our Labor & Employment group.

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