DOL Clarifies Pay for Travel Time and FMLA Breaks

04-26-2018

Two opinion letters have been issued by the U.S. Department of Labor (DOL). The first letter addresses the compensability of travel time for hourly employees without a set schedule under the Fair Labor and Standards Act (FMLA). Generally, paid work time does not include time spent commuting to and from work. Time spent commuting between work sites is compensable. However, how is work time determined when the employee does not have a “regular” workday? In those instances, the DOL offers three ways to “reasonably ascertain an employee’s normal work hours.” One, review the work records to find “typical work hours.” If that is insufficient, survey the average start and end times for the month. Lastly, if the first two cannot devise a standard for the “regular” work day, negotiate and agree with the employee as to a “reasonable” amount of compensable travel time.
 
For the second DOL opinion, the issue was an employer’s obligation to compensate FMLA approved breaks. In the letter, a non-exempt employee had eight fifteen-minute rest breaks as part of Family and Medical Leave Act leave. FMLA does not require that employees be paid for FMLA protected leave. As such, the DOL asserted that generally FMLA breaks do not need to be compensated. However, two of the 15-minute breaks should be paid because they benefitted the employer while the total amount of FMLA-protected breaks were for the benefit of the employee. It should be noted that the opinion letter stated that employees who take FMLA-protected breaks are entitled to as many compensated breaks as any of their co-workers receive.