On March 14, 2019, the U.S. Department of Labor (DOL) issued three new opinion letters. An opinion letter is an official, written opinion by the division on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter. The requesting parties' names are not included in the letters to protect their privacy, the letters state. These opinion letters are a helpful tool for employers to understand their rights and responsibilities under the law. Paying close attention to the latest guidance the DOL Wage and Hour Division has to offer is an easy way to limit risks and reduce potential liabilities.
One of the letters, Opinion Letter FMLA2019-1-A, provides some additional insight on how employers should designate Family and Medical Leave Act (FMLA) leave when an employee has both paid sick time and FMLA leave available. The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons. However, employees have always looked for loopholes to expand the allotted leave. The latest DOL opinion letter seeks to close some of those loopholes.
Some employers permit employees to use accrued paid leave prior to officially designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying. This would apparently allow the employee to lengthen leave time by taking paid leave at the outset and then invoking FMLA leave consecutively thereafter. According to the opinion letter, “once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave… Accordingly, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”
If an employee is eligible for both sick leave and FMLA leave and elects to take paid sick leave, employers must designate the paid sick leave as FMLA leave as soon as the paid sick leave begins. This guidance suggests that employee cannot save his or her FMLA leave for later use. Once the employer has enough information to determine the employee’s leave is for an FMLA-qualifying reason, the employer must provide notice of the determination to the employee within five business days.
Other employers have permitted employees to substitute accrued paid leave for unpaid FMLA leave, presumably either to preserve remaining FMLA leave in the case of future emergencies, or else to mitigate lost wages during unpaid FMLA leave. According to the opinion letter, however, this is not permissible under the FMLA: “If an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”
For employers that currently allow employees to decide whether to use accrued paid leave during otherwise unpaid FMLA leave, it may be time to consider a revision to policies requiring the use of accrued paid leave during FMLA leave to avoid offending this new interpretation of the law.
The other letter, Opinion Letter FLSA2019-2, addresses proper compensation practices for employers that permit employees to participate in employer-sponsored volunteer programs.
The FLSA is intended to “prevent manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to ‘volunteer’ their services.” Unsurprisingly, employer-sponsored volunteer programs are subject to great scrutiny to ensure that “employer-sponsored volunteer” hours are not a guise for exploitation in the form of uncompensated and unprotected hours.
This guidance applies to programs set up to engage employees in community service, whether chosen by the employer or selected by the employees – for example, an "adopt a school" program where a nonprofit's employees may paint and landscape a school building on weekends over the course of the year.
In its letter, the DOL affirmed that volunteer programs that are both charitable and truly voluntary are non-compensable. Programs that are required or over which an employer directs or controls the volunteer work, however, are not truly charitable and voluntary, and therefore must be compensated.
With this in mind, an employer that sponsors a volunteer program should keep the following points in mind to avoid violating the FLSA’s minimum wage and overtime requirements:
- Employee participation in the program must be truly charitable and completely voluntary, meaning that employees who do not participate in a program should not be disciplined, or conversely, provided fewer benefits than employees who do participate;
- An employer may not require or unduly pressure participation in the program, nor should it control or direct volunteer work;
- Employees must not suffer adverse consequences in their working conditions or employment prospects if they do not participate in volunteer activities;
- While an employer may offer a monetary bonus for community impact generated from the volunteer work, the bonus must not be guaranteed; and
- An employer may track participating volunteers’ hours for the purpose of determining community impact, but such tracking must not be used as a tool to direct or control employees’ volunteer activities.