human resources news may 2018

HR News May 2018 – DOL Opinion Letters and Interacting With OSHA

Legal and Regulatory Updates:

  • EEO-1 Filing: Initially postponed from September 2017 until March 31, 2018, the filing deadline has now been extended to June 1, 2018 for employers required to file one.
  • Fully-Staffed NLRB (finally): On April 11, the U.S. Senate confirmed Republican John Ring as a member of the NLRB, and he was quickly elevated to chairman. The Republicans now hold the majority on the fully-staffed Board.
  • Equal Pay Day: April 10 was Equal Pay Day which, according to the National Committee on Pay Equity, symbolizes how far into the new year women must work to earn what men averaged earning in the previous year.


Two New DOL Opinion Letters         

You have probably heard that under the Obama administration, the U.S. Department of Labor (DOL) stopped issuing ‘opinion letters.’ These were helpful letters from the DOL, providing detailed answers addressing specific frequently asked questions from employers about day to day administration of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). The current administration started these back up again, and recently issued two new ones:


Compensability of Travel Time (FLSA2018-18):

Generally, time spent commuting to and from work is not compensable even if an employee’s job site varies day to day. Travel between job sites during the workday is counted as hours worked for non-exempt employees for purposes of calculating hours paid. And, travel away from home is paid “worktime” when it cuts across an employee’s regular hours, whether the travel is on a weekday or a weekend.


But how do you handle compensation for travel time if there is no ‘regular workday?’ That is the question addressed in this opinion letter! The Wage and Hour Division (WHD) of the DOL provides three acceptable options on how to determine the employee’s normal work hours. Two suggest reviewing the hours worked over the most recent month of employment to draw some conclusion, and the third option, if the first two don’t yield a reasonable result, is to negotiate and agree with the employee as to a reasonable amount of travel time. If you have employees who fall into this group, please refer to the DOL.gov website for more information.


Compensability of FMLA-Related Rest Breaks (FLSA2018-19):

This opinion letter addressed whether non-exempt employee’s 15-minute rest breaks, mandated by the employee’s health care provider and covered under the FMLA, are compensable under the FLSA.


Under the FLSA, breaks up to 20 minutes that primarily ‘benefit the employer’ ordinarily are compensable. However, short breaks that primarily ‘benefit the employee’ are not. Short breaks accommodating an employee’s serious health condition would be primarily benefitting the employee, so therefore are not compensable. It is important to note, however, that employees who take FMLA-protected breaks must also receive as many compensable breaks as their coworkers.


Opinion letters provide good guidance for employers. However, the determinations they offer are based on a specific fact set. If you rely on an opinion letter in handling a situation at your company, be sure to carefully compare your fact set, with that used in the opinion letter to confirm it should be applicable. And as always, check with your employment attorney if your situation is especially sticky!


Summer is Coming!

Actually, here in the southeast this week, it seems to have arrived—


The pine pollen is finally blowing away, and the air is warming up. So are the oceans that stir up hurricanes and the potential for other warm weather nightmares. Here is a friendly reminder about how to pay your employees if your business closes for a natural disaster, or your employee is unable to get to work due to the weather situation.


Nonexempt employees are paid for time worked. According to the FLSA, you are not obligated to pay them if they don’t work…unless you have a company policy that is more generous than the law. In that case, be sure you follow your policy; and, be sure the employee is not performing work for you remotely. In which case, you would be obligated to pay them.


Even if your doors are closed due to a natural disaster, your exempt employees must still be paid for an entire week if they work any part of it. If your business is closed for more than one week, you are not legally obligated to pay your exempt employees unless they are performing work remotely for you during that time.


Interacting With the Occupational Safety and Health Administration (OSHA)

The DOL has authorized OSHA to conduct worksite inspections to enforce safety and health laws to protect American workers. Under the General Duty Clause of the OSH Act, all employers must provide employees a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”


There are occasions when you as the employer are required to contact OSHA, and times when OSHA may come knocking on your door. Here is a brief recap of those responsibilities.


Be sure to call OSHA when…

  • There is an on-the-job fatality (make contact within 8 hours)
  • There is a work-related in-patient hospitalization, amputation, or loss of an eye (make contact within 24 hours)


OSHA will be in touch with you when (in order of priority)…

  • Imminent danger situation
  • Severe injuries and illnesses, that employers have reported
  • Worker complaints, which may be anonymous
  • Referrals, from other agencies, individuals, organizations or the media
  • Targeted inspections, aimed at high-hazard industries or workplaces with high rates of injuries or illnesses
  • Follow-up inspections, to be sure previous inspection violations have been abated


OSHA penalties have been updated for 2018, as follows:

  • $12,934 for serious, other-than-serious, and posting requirement violations
  • $12,934 per day beyond abatement date for failure to abate violations
  • $129,336 per each willful or repeat violation


As a reminder, if an OSHA inspector shows up unannounced at your door, you are not required to let them in at that time. It is suggested that you be cordial to them, review their identification to assure they are with OSHA, call your health and safety manager and your employment attorney ASAP for advice on next steps, and invite the inspector to have a seat in your lobby. OSHA visits are serious business, and among other things can impact employee morale and your company’s reputation. Be cautious.


This newsletter is not intended to provide legal guidance to you. We welcome your input on topics you would like to learn more about. We encourage you to contact the author of this newsletter, Caryl Kuchman, SPHR, SHRM-SCP at 803.729.8398 or at ckuchman@benefitcompany.com if you have questions on any information presented.






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