Earlier this month, the Wage and Hour Division (WHD) of the Department of Labor (DOL) issued its first set of new opinion letters in nearly a decade. One of the opinion letters concerns whether workers should be paid for health-related rest breaks, an issue of interest to NFDA members.
With regard to breaks, DOL regulations construing the Fair Labor Standards Act (FLSA) provide that an employee must be paid for certain rest breaks. Rest periods of short duration, typically lasting from 5 minutes to about 20 minutes, are common in business. Such breaks are thought to promote employee efficiency and are customarily considered working time. They must be counted as hours worked because they primarily benefit the employer.
In its opinion letter, the WHD considered whether a non-exempt employee’s 15-minute rest breaks, certified by a health care provider, as required hourly, because of the employees’ serious health conditions, are compensable time under the FSLA. (Non-exempt employees generally do not hold executive, administrative, or professional positions or are commissioned outside sales persons.)
Because these breaks accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and not the employer. For that reason, the WHD determined that they are not compensable and not part of the wage that the employer must pay.
You may read the full opinion letter here: https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_02_FLSA.pdf
The FLSA is a complex and technical statute, which does not apply in all instances to all employers and certainly not to all funeral homes. Before adopting the guidance provided in the recent opinion letters, care should be taken to determine whether the guidance is applicable to your funeral home.
Other recent opinion letters cover when employees should be compensated for time spent traveling for work and what forms of lump-sum payment should be garnished for child support.