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

Marty McCarthy, CPA, CCIFP
Focused on You. Dedicated to Your Success.
March 18, 2019

The U.S. Department of Labor (DOL) issued new opinion letters on March 15, 2019 that address compliance issues related to the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) .

FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

  • Twelve workweeks of leave in a 12-month period for: 

  • the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

  • Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009 (unless state or local minimum wage requirements are higher). Overtime pay at a rate not less than one and one-half times the regular rate of pay is required (unless the employee is exempt) after 40 hours of work in a workweek.

Here are the links to the DOL opinion letters:
  1. FMLA2019-1-AProvides an opinion on the obligation to designate FMLA-qualifying leave and prohibition on expanding FMLA leave. Opinion: An employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (26 weeks of military caregiver leave) as FMLA leave. 
  2. FLSA2019-1: Clarifies FLSA wage and record-keeping requirements for residential janitors and the “good faith” defense. Opinion: Based on the facts provided, residential janitors are not exempt from the FLSA’s minimum wage and overtime requirements because the FLSA does not include an exemption for residential janitors or similar employees.
  3. FLSA2019-2: Addresses FLSA compliance related to the compensability of time spent participating in an employer-sponsored community service program. Opinion: An employee’s participation in employer-sponsored charitable work does not count as hours worked under FLSA, as long as the employer does not unduly pressure its employees to participate. 

In a separate matter, volunteer hours could qualify as work hours if an employer uses a mobile device to track and manage (give instructions, control what and how something is done) employee volunteer hours.  

Please feel free to call anyone on our team at 610-828-1900 (PA) or 732-341-3893 (NJ) with questions. You can also contact me at Marty.McCarthy@MCC-CPAs.com . As always, we are focused on your and desiccated to your success. 

Martin C. McCarthy, CPA, CCIFP
Managing Partner 
McCarthy & Company, PC 

Disclaimer:  This alert is for informational purposes only and does not constitute professional advice. Information contained in this communication is not intended or written to be used as tax advice, and cannot be used by the recipient to avoid penalties that may be imposed under the Internal Revenue Code. We strongly advise you to seek professional assistance with respect to your specific issue(s).