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DOL Issues Opinion Letters on FMLA Leave, Volunteer Programs, and Pay to Residential Janitors DOL Issues Opinion Letters on FMLA Leave, Volunteer Programs, and Pay to Residential Janitors

DOL Issues Opinion Letters on FMLA Leave, Volunteer Programs, and Pay to Residential Janitors

On March 14, 2019 the U.S. Department of Labor (DOL) released three new opinion letters—the first to be issued by the DOL’s Wage and Hour Division this year. One opinion letter addresses the ability of employers to delay designation of leave under the Family and Medical Leave Act (FMLA), even for benevolent reasons, and of employees to choose whether to decline to use FMLA-protected leave in order to preserve it for future use. The other two letters address issues under the Fair Labor Standards Act (FLSA) covering payment of employees spending time participating in an employer’s optional volunteer program and minimum wage and overtime payments to residential janitors.

Delaying or Expanding FMLA Leave (Opinion Letter FMLA2019-1-A)

According to the DOL’s first FMLA opinion letter of 2019, an employer may not delay designating paid leave as FMLA leave and may not permit employees to expand their FMLA leave beyond the statutory 12-week entitlement (or 26-week entitlement, in the case of military caregiver leave). In issuing its opinion, the DOL explicitly disagreed with a U.S. Court of Appeals for the Ninth Circuit decision, which held that an employee may use non-FMLA leave for an FMLA-qualifying reason, and decline to use FMLA leave in order to preserve FMLA leave for future use. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014).

The letter addresses the scenario in which employers “voluntarily permit[ ] employees to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA-qualifying, even when the leave is clearly FMLA-qualifying.” In finding that an employer may not delay designating paid leave as FMLA leave where it so qualifies, the DOL reasoned that 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. Such leave is necessarily protected FMLA leave and counts towards the employee’s FMLA leave entitlement. Once the employer has enough information to make the determination that leave is for an FMLA-qualifying reason, the employer must, absent extenuating circumstances, provide notice of the designation within five business days. Accordingly, the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer the employer delay the designation.

As noted, the DOL also found that an employer may not permit employees to expand their FMLA leave beyond the statutory 12-week entitlement (or 26-week entitlement, in the case of military caregiver leave). Thus, if an employee chooses (or an employer policy requires) substitution of paid leave for unpaid FMLA leave, such paid leave counts toward the FMLA entitlement and does not expand the entitlement. Employers may, of course, provide additional paid or unpaid leave once FMLA is exhausted, but may not designate it as such until the employee is eligible for additional FMLA leave. If an employer does not require substitution of other paid leave, employees are still free to save vacation and other types of leave until after exhaustion of FMLA leave. However, the point of the opinion letter is that if an employee presents an employer with a qualifying reason for FMLA leave, neither the employer nor the employee gets to choose whether the leave should be designated as FMLA leave – regardless of whether the otherwise applicable paid leave also applies. Leave either qualifies for FMLA protection, or it does not.

Employers should take heed of the DOL’s opinion in determining how to administer FMLA designations and in implementing benefits or programs that allow employees to take additional leave beyond FMLA. Employers may wonder—practically speaking—why does this matter? While it is a bit perplexing why the DOL would apparently limit employer practices that result in employee’s receiving more leave than required by FMLA, making appropriate FMLA designations at the right time can matter. For example, if an employee seeks FMLA leave, the employer has to look at a 12-month period to determine whether the employee has used his or her FMLA allotment or has remaining FMLA time available. If the employer should have designated FMLA leave earlier, outside of the 12-month period (but waited, because it allowed the employee to use up paid time off first), or designated more than 12 weeks as FMLA leave, the employer may determine the employee is not eligible for additional FMLA leave, when, if calculated according to the opinion letter, that employee should be eligible.

Employee Participation in Volunteer Programs (Opinion Letter FLSA2019-2)

In this letter, the DOL was asked to provide an opinion about whether an employee’s time spent participating in an employer’s optional volunteer program is considered hours worked under the FLSA, where participation in the program may result in receiving a bonus. In the situation presented, the DOL found that participation in the program does not count as hours worked under the FLSA, where: (1) the program is charitable and voluntary; (2) the employer compensates the employees if the employees are engaging in the volunteer activities during working hours or while they are on the employer’s premises; (3) the employer does not direct or control employees’ participation; (4) it does not appear employees suffer adverse consequences if they do not participate in the program; and (5) the employer does not guarantee participating employees a bonus for their volunteer work. The DOL concluded that as long as the employer did not unduly pressure the employees to participate, participation in the program does not count as hours worked under the FLSA. The opinion letter is fact-specific, but provides guidance for employers with similar programs.

Residential Janitor Minimum Wage and Overtime Pay (Opinion Letter FLSA2019-1)

The DOL also found that residential janitors (individuals handling building care and maintenance in certain multi-unit residential buildings, who also live in the buildings) are not exempt from the FLSA’s minimum wage and overtime requirements, despite a state law expressly exempting them from state minimum wage and overtime requirements, because the FLSA does not include an exemption for residential janitors or similar employees. In its letter, the DOL also opined that relying on a state law exemption from state law minimum wage and overtime requirements is not a good faith defense to noncompliance with the FLSA (that would allow an employer to avoid liquidated damages or the FLSA’s three-year back wage liability period).

This letter serves as an important reminder to employers that compliance with state law does not excuse compliance with the FLSA. Before an employer may classify employees as overtime-exempt, they must be exempt under both the FLSA and applicable state laws.

For more information, contact Kayla Ernst or another member of our Labor, Employment and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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