Dear Wage And Hour

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Felix "Pete" Wade Felix "Pete" Wade

Dear Wage and Hour…doesn’t have quite the ring of Dear Abby. It also doesn’t have the general interest. For industry associations, HR professionals and lawyers, there has been a nine-year hiatus in what was, and is again, the U.S. Department of Labor’s practice of issuing opinion letters interpreting its own statutes and regulations. This month, the DOL issued three letters.  These opinion letters do not have the force of law, but they are a defense to any claim of willful misconduct.   
The first case deals with when an employee must be paid for traveling away from the employee’s home community. Generally, employees are not entitled to compensation for travel time between home and work. When an employee must travel away from his or her home community, the travel time is generally compensable work time when it cuts across the employee’s regular work day. Here, the DOL noted the employees did not have a regular work day. In such a rare scenario, the company has two options: the employer may choose the average start and end times for the employee’s work days to determine what time would be compensable or the employer may negotiate with the employee to agree to a reasonable amount of time for compensation. The letter also addressed that the use of a company vehicle alone will not make ordinary commute time compensable. 
The second letter involved the unique circumstance where a health care professional certified that employees had to have 15-minute rest breaks every hour to accommodate a serious health condition. In this case, the DOL found that these 15-minute breaks were not generally compensable, because they were for the benefit of the employee. However, where other employees were paid for two 15-minute breaks per eight-hour shift, the employees receiving eight 15-minute breaks would have to be paid for two of them. To not pay them would discriminate against those employees requiring the ADA accommodation. 
The third letter deals with what earnings may be garnished. The key question is whether the employee is paid an amount for “the employee’s services.” If so, his or her earnings may be garnished. The few examples of payments that are not earnings included reimbursements for medical expenses in workers’ compensation cases, compensatory or punitive damages and buybacks of company shares. 
These three opinion letters may or may not have applicability to your business. The fact the Wage and Hour Division is back in the business of issuing opinion letters gives associations, HR professionals and attorneys one more tool to do a better job for the businesses they represent.

For more information, contact Felix "Pete" Wade, Tami Earnhart 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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