DOL Issues Opinion Letters on Designating FMLA Leave, as well as Volunteer Activities and State Law Exemptions Under the FLSA


The Department of Labor (DOL) has released three new opinion letters – one on the Family and Medical Leave Act and two on the Fair Labor Standards Act (FLSA). Opinion letters respond to a specific wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then rely on these opinion letters as guidance.

FMLA2019-1-A: The DOL stated that an employer may not delay designating FMLA leave that is qualifying, even at the request of the employee. Nor may an employer expand FMLA-qualifying leave beyond 12 weeks of leave (or 26 weeks of military caregiver leave).

The DOL was asked whether it was permissible to allow employees to use non-FMLA leave prior to designating leave as FMLA-qualifying. The DOL responded that an employer may not delay the designation of FMLA-qualifying leave. Specifically, “[o]nce 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.” In so stating, the DOL disagreed with a decision from the U.S. Court of Appeals for the Ninth Circuit that found an employee could decline to use FMLA leave for an FMLA-qualifying reason.

In addition, the DOL noted that, while an employer may provide greater leave benefits to employees than the rights established by the FMLA, such additional leave cannot expand the employee’s 12/26 week entitlement under the FMLA. Only the 12/26 week period is covered by the FMLA.

This opinion letter provides clear guidance to most employers that, in the view of the DOL, the designation of FMLA is mandatory and immediate. Employers in the Ninth Circuit, however, may be subject to a different interpretation.

FLSA2019-2: The DOL confirmed that employee participation in certain volunteer activities, even if sponsored by the employer, does not constitute hours worked under the FLSA.

The employer at issue provided an optional community service program for its employees, under which employees may participate in volunteer activities sponsored by the employer or selected by the employees. Although activities during working hours were paid, those that took place outside normal working hours are not. At the end of the year, the group of employees with the greatest community impact, which can include the number of hours volunteered, received a monetary award.

Under the FLSA, volunteers are not considered employees if they offer their services for religious, charitable, civic, humanitarian or similar public services without contemplation or receipt of compensation. Such services must be offered “freely without coercion or undue pressure” from an employer. While employers may notify employees of volunteer opportunities, there can be no negative consequences if the employee chooses not to participate. In addition, compensating employees for volunteer hours worked during normal working hours does not change their volunteer status during non-working hours.

The DOL also noted that an employer may consider time spent volunteering in calculating a bonus without rendering that time compensable, as long as (1) volunteering is optional, (2) not volunteering has no negative impact on the employee’s working conditions or employment prospects, and (3) the employee is not guaranteed a bonus for volunteering.

Applying these principles, the DOL found the employer’s program to be charitable and voluntary, such that employee participation did not constitute hours worked. The DOL also noted that the employer could use a mobile device application to track volunteer hours, but not to direct or control the employee’s activities, as that would render the hours compensable.

FLSA2019-1: The DOL offered guidance on compliance with multiple and differing overtime and minimum wage laws.  In a matter involving the residential janitors exemption under New York state law – which is not recognized under the FLSA – the DOL affirmed that “When a federal, state, or local minimum wage or overtime law differs from the FLSA, the employer must comply with both laws and meet the standard of whichever law gives the employee the greatest protection.” Thus, in this matter, for example, the residential janitors were not exempt from the minimum wage and overtime protections of the FLSA, the state law exemption notwithstanding, because the FLSA contains no such exemption. The DOL observed that “[c]ompliance with state law does not excuse noncompliance with the FLSA.”

Moreover, if there is a willful violation under the FLSA, an employer may be subject to a three year statute of limitations, rather than two years, and liquidated damages. A court may deny liquidated damages if the employer can show that it acted in “good faith,” meaning that it had “reasonable grounds for believing that his act or omission was not a violation” of the FLSA. The DOL suggested, however, that relying on the state law exemption is not a good faith defense.