It’s About Time! DOL Releases Opinion Letters on the FMLA and FLSA


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

The DOL issued two opinion letters on the FMLA:

  • FMLA2018-1-A: The DOL states that an employer’s no-fault attendance policy, under which attendance points normally expire after 12 months but are frozen throughout the duration of an FMLA leave, thereby remaining on the employee’s record for longer than 12 months, does not violate the FMLA as long as it is applied in a nondiscriminatory manner with regard to other leaves. 
  • FMLA2018-2-A: The DOL concludes that voluntary organ-donation surgery and post-operative treatment can qualify as a “serious health condition” for which the employee is entitled to FMLA leave.

The DOL also issued four opinion letters on the FLSA:

  • FLSA2018-20: The DOL finds that an employee’s voluntary participation during the workday in on-site biometric screenings, wellness activities, and benefits fairs – which are not directly related to the employee’s job – predominantly benefits the employee, and therefore the time spent in such activities is not compensable worktime under the FLSA. Moreover, because the employee is relieved of all job duties during such activities, that time is also noncompensable “off duty” time. 
  • FLSA2018-21: Under the FLSA, certain commissioned salespeople of “retail or service establishments” are exempt from overtime. In order to be a “retail or service establishment”: (1) the entity must engage in the making of sales of goods or services”; (2) 75% of its sales must be recognized as retail in the particular industry; and (3) not over 25% of its sales may be for resale.” The opinion letter makes the following points of general interest: a business may make its sales primarily online; it is irrelevant whether the products are for either commercial or non-commercial use; and the fact that a purchaser uses the product to serve its own customers and may even raise prices to recover the purchase price does not make the product “wholesale” instead of “retail.”
  • FLSA2018-22: The FLSA recognizes that those who freely volunteer time without pressure or coercion to a non-profit organization are not employees, and acknowledges that the non-profit entity may pay for “travel, lodging, meals and other expenses incidental to volunteering without negating [the] volunteer status.” In the present instance, the DOL found volunteer status even though the volunteers were members of the non-profit organization who had previously been treated as short-term employees receiving compensation for the same services, given that the volunteers freely offered the services for charitable reasons, were highly compensated executives who continued to be primarily employed by others, and the periods of service were no more than two weeks a year.
  • FLSA2018-23: The FLSA exempts employees of motion picture theater establishments from its overtime requirements. The DOL found that the exemption applies to the food services operations of motion picture theaters, including in-theater dining and on-site restaurants that almost exclusively service theater-goers. The food services operations constitute a single establishment with the movie operations, since, as a single unit, they are incorporated, pay taxes, maintain business records, order goods, pay invoices, use the same bank account, use a single name, and the employees perform services in both operations.