On April 12, 2018, the United States Department of Labor issued opinion letters that provide guidance on how employees without "normal working hours" should be compensated for travel time involving an overnight stay and whether rest breaks provided as a reasonable accommodation are compensable. 

When Travel Time Is Compensable:

The first opinion letter, FLSA2018-18, confirms long-standing DOL positions regarding when travel time is compensable under the Fair Labor Standards Act (FLSA) (e.g., hotel to worksite travel is a normal non-compensable commute). 

Handling Irregular Schedules:

The Dilemma: For employees with irregular schedules, how do you determine "normal work hours" during which they must be paid when travel requires an overnight stay?

Suggested Approach: Employers have two different methods to reasonably ascertain an employee's normal work hours and determine whether travel time is compensable.  

  1. The employer may review the employee's time records during the most recent month of regular employment and use the average start/end times during that time.  
  2. Employers may also negotiate with the employee or employee's representative and agree to what constitutes the employee's normal work hours. 
  3. If employers use either of these methods, the DOL will not find FLSA violations when employees are not paid for travel time occurring outside these normal working hours on work or non-work days.

Rest Breaks:

A second DOL letter, FLSA2018-19, clarifies when:

  1. Rest breaks given by an employer to accommodate an "employee's serious health condition" predominantly benefit the employee and are not compensable as a result.

This ruling provides an exception to the current FLSA regulations that allow that employees must be paid during rest breaks of 20 minutes or less.

  1. The DOL states that a 15-minute rest break each hour (certified by a health care provider) due to the employee's serious health condition is and therefore covered by the Family and Medical Leave Act (FMLA) would not be compensable time under the FLSA. 
  2. Notably, employees that take FMLA-protected breaks as an accommodation must still receive as many paid rest breaks as their coworkers

While these are only interpretations under the Federal FLSA, California usually follows these federal policies. These letters signal that the DOL will soon be issuing employers much-needed assistance and guidance for complying with the FLSA and other new regulations and laws.

Combined has joined with CalWorkSafety, LLC to provide help to our clients to comply with this new requirement.