WHD issues guidance on white collar exemptions

On April 12, the Department of Labor released a fact sheet that discusses the applicability of the “white collar” exemptions of the Fair Labor Standards Act (FLSA) to jobs that are common in higher education institutions. The DOL also published opinion letters addressing travel under the FLSA and compensation for 15-minute rest breaks required by an employee’s serious health condition.

White collar fact sheet

The white collar fact sheet provides information on minimum wage and overtime exemptions common to higher education jobs, including teachers, coaches, professional employees, administrative employees, graduate teaching assistants, research assistants, and student residential assistants. The fact sheet compiles longstanding principles and information, making them more accessible to the regulated community, according to the DOL’s Wage and Hour Division.

Student employees

The fact sheet addresses student employees-an area that has come under greater scrutiny in recent years, given the sometimes mixed status of students as individuals pursuing educational goals while at the same time working to advance the goals of teachers and the educational institutions they attend.
Generally, most students who work for their college or university are hourly non-exempt workers and do not work more than 40 hours per week, the fact sheet notes. But it also pointed to three examples of students who often receive a salary or other non-hourly compensation:

  • Graduate teaching assistants. Graduate TAs whose primary duty is teaching are exempt. Because they qualify for the teacher exemption, they are not subject to the salary basis and salary level tests.
  • Research assistants. An educational relationship generally exists when a graduate or undergraduate student performs research under a faculty member’s supervision while obtaining a degree. Under these circumstances, the DOL would not assert that an employment relationship exists with either the school or any grantor funding the student’s research, even though the student may receive a stipend for performing the research.
  • Student residential assistants. Students enrolled in bona fide educational programs who are residential assistants and receive reduced room or board charges or tuition credits are not generally considered employees under the FLSA. Thus they are not entitled to minimum wages and overtime under the FLSA. An employment relationship will generally exist when a student receives compensation and his or her duties are not part of an overall education program. For example, students who work at food service counters, sell programs or usher at events, or wash dishes in dining halls and anticipate some compensation (e.g., money or meals) are generally considered employees entitled to minimum wage and overtime compensation. (U.S. Department of Labor, Wage-Hour Division, Fact Sheet # 17S: Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act (FLSA), March 2018.)

Opinion letters

The DOL has released two WHD opinion letters. An opinion letter is an official, written opinion by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter-they represent official statements of agency policy. The opinion letters address the following issues:

FLSA travel.

The opinion letter underscores the WHD’s position on several issues including these:

  • Where an employee “is offered public transportation but requests permission to drive his [or her] car instead, the employer may count as hours worked either the time spent driving the car or the time he [or she] would have had to count as hours worked during working hours if the employee had used the public conveyance.”
  • When an employee is temporarily working at a fixed remote location, “generally, the travel time from the hotel to the work site and back would be considered ordinary home-to-work travel, and, as such, need not be compensated.”
  • Compensable worktime generally does not include time spent commuting between home and work, even when the employee works at different job sites. Travel between job sites after arriving at work, however, is compensable.
  • As to commuting time, a company-provided vehicle does not, alone, make an ordinary commute compensable, provided that “the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.” (U.S. Department of Labor, Wage-Hour Division, Opinion Letter FLSA2018-18, April 12, 2018.)

Health condition-required rest breaks.

The second opinion letter responded to a request for an opinion as to “[w]hether a non-exempt employee’s 15-minute rest breaks, which are certified by a health care provider as required every hour due to the employee’s serious health condition and are thus covered under the FMLA, are compensable or non-compensable time under the FLSA.”
Rest breaks up to 20 minutes in length are generally compensable because the breaks predominantly benefit the employer, according to the opinion letter. However, the specific FMLA-protected breaks described in the inquiry differ significantly from ordinary rest breaks commonly provided to employees. Here, the 15-minute breaks “are required eight times per day and solely due to the needs of the employee’s serious health condition as required under the FMLA.”
Because these FMLA-protected breaks are given to accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and are non-compensable, the letter states. This conclusion comports with both regulations and case law. Moreover, the text of the FMLA itself further confirms that employees are not entitled to compensation for the FMLA-protected breaks at issue. The FMLA expressly provides that FMLA-protected leave may be unpaid, and it provides no exceptions for breaks up to 20 minutes in length.
That said, the letter goes on to stress that employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. Thus, if an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, an employee needing 15-minute rest breaks every hour due to a serious health condition should likewise be compensated for two 15-minute rest breaks during his or her 8-hour shift. (U.S. Department of Labor, Wage-Hour Division, Opinion Letter FLSA2018-19, April 12, 2018.)

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