DOL Issues Three New Opinion Letters

Last week, the U.S. Department of Labor issued a trio of new opinion letters concerning Family and Medical Leave, exemptions from the Fair Labor Standards Act, and wage garnishments subject to the Consumer Credit Protection Act. Here’s what the agency had to say:

FMLA2019-3-A: This letter addressed whether a public employer with a collective bargaining agreement providing for generous seniority benefits during paid leave is permitted to delay designating FMLA leave at the request of an employee. The DOL Administrator concluded that the employer may not. Rather, the letter affirmed other recent DOL guidance that employers must designate FMLA once they have sufficient information to know that the FMLA applies.

FLSA2019-13: This letter clarified that employers seeking to claim the retail or service establishment overtime exemption in Section 7(i) of the FLSA must use a representative period of no shorter than a full calendar month to determine whether an employee has satisfied the requirement that more than half of their income was based on commissions for goods and services. A practice of substituting four weeks or two biweekly pay periods for one month, the letter clarified, is not permissible, though longer periods of time that necessarily exceed a calendar month (e.g., six weeks) are sufficient.

CCPA2019-1: This letter clarified that employer contributions to Health Savings Accounts are not considered “earnings” that must be considered in calculating garnishment withholding limits under the CCPA.

Note that DOL Opinion Letters, while illustrative, are primarily intended as guidance documentation. Before adjusting your practices, please contact your friendly attorneys at Employers Council.