Wage and Hour Laws: DOL Issues New Opinion Letters

In March of 2019, the United States Department of Labor’s Wage and Hour Division issued two opinion letters that addressed the Fair Labor Standards Act. While one of the letters detailed the interaction between the overtime exemptions in New York for residential janitors and the Fair Labor Standards Act (FLSA), which does not exempt workers, the other letter addressed whether time spent in employer optional volunteer programs constitutes “hours worked” requiring compensation under the Fair Labor Standards Act. While the subject matter of these letters does not apply to all workers, it does touch on some important elements of wage and hour law that should be understood by everyone. These opinion letters also offer a reminder that compliance with state law does not excuse noncompliance with the FLSA, and when an employer directs or pressures an employee to volunteer, that time often constitutes hours worked under the FLSA.

Federal and State Wage and Hour Laws

In the first letter, the Wage and Hour Division tackled the interaction between federal and state minimum wage and overtime law in the area concerning live-in superintendents who are exempt from state minimum wage and overtime requirements. In issuing its decision, the Wage and Hour Division advised that in situations in which federal wage and hour law is different from state or local law, an employer is required to comply with both laws and satisfy whatever standards provide the workers with the greatest amount of protection.

Applied to the issue at hand, the Wage and Hour Division confirmed that the FLSA does not offer any comparable protection to New York’s residential janitor exemption. The Wage and Hour Division’s analysis, however, went further and found that when a worker lives on an employer’s premises, not all of a worker’s time at the residence constitutes hours worked. To avoid uncertainty about what hours a live-in employee works, the department recommended that both the employer and employee establish set work hours.

Employee Volunteer Hours

In the second letter, the Wage and Hour division considered employee participation in employer sponsored optional community service programs under which workers were compensated for the time that they spent volunteering during working hours or were required to be on the employer’s premises but not compensated for hours spent volunteering outside of normal working hours. At the end of the year in these programs, workers with the greatest community impact receive a monetary award.

Based on previous opinion letters, the Wage and Hour Division found that participation in these programs does not count as hours worked under the FLSA because the employer does not require participation in the program, the employer does not control the work, workers do not experience adverse employment actions if they decline to participate, an employer does not guarantee participating workers a bonus for volunteering, and the employer in no way pressures workers to join in the program.

Speak with an Experienced Wage and Hour Lawyer at Herrmann Law

If you or someone you know is a worker who was not properly compensated by an employer pursuant to state or federal wage and hour laws, you should not hesitate to speak with an experienced attorney. Contact Herrmann Law today to schedule an initial case evaluation by calling 817-479-9229 or completing our online form and someone from our office will contact you within one (1) business day.