New Wage and Hour Opinion Letters from the U.S. Department of Labor

• Voluntary participation in wellness activities, while off duty and relieved of all job duties, is not considered hours worked and does not require compensation where the activities provide direct financial benefit only to the employee (except that rest periods are still compensable regardless of how employees choose to spend their time).
• A “retail or service establishment” under the sales exemption of the FLSA is one that (1) is engaged in the making of sales of goods or services, (2) 75 percent of sales are recognized as retail in the particular industry, and (3) not over 25 percent of its sales may be for resale. Employers who sell to commercial consumers, who sell primarily online, and whose products are used by purchasers to serve their own customers, may still qualify for the exemption.
• Volunteers under the FLSA are those who offer their services freely and without pressure or coercion. Companies may still pay for volunteers’ travel, lodging, meals, and other expenses incidental to volunteering, without negating their volunteer status.
• The motion picture theater exemption applies to all employees in a “single establishment” primarily engaged in the business of showing motion pictures. It is the “nature of the employer’s business, not the work performed by a particular employee” that determines whether establishment-based exemptions apply.
• A no-fault attendance policy does not violate FMLA if it is applied in a nondiscriminatory manner. Specifically, freezing attendance points while an employee is on leave, and allowing them to resume upon return, does not interfere with employee FMLA rights and puts employees in the same position on return from leave as they were when they left.
• Organ-donation surgery and post-surgery recovery can qualify as a “serious health condition” under FMLA when it involves either inpatient care or continuing treatment, even if the donation is for the sole purpose of improving someone else’s health.

Although case law takes precedence over WHD opinion letters, they provide insight on how the DOL will interpret such matters. Employers should review the opinions directly for the WHD’s analysis of facts applicable in each instance.

Action Items

1. Review the FLSA opinions here and the FMLA opinions here.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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