Key  Takeaways:

• Letter addressing FMLA: Once an employer has enough information to determine that an employee’s leave request qualifies as FMLA leave, employer must designate leave as FMLA, regardless of employee’s intent

• Letter addressing FLSA: Retail or service establishments may not count individual weeks as one calendar month

• Letter addressing CCPA: Employer contributions to HSAs are not earnings under the CCPA, and not subject to CCPA’s garnishment limitations

There are three new opinion letters from the U.S. Department of Labor (DOL). The purpose of DOL opinion letters is to interpret and provide clarity to federal labor laws, and these three new letters target issues under the Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), and Consumer Credit Protection Act (CCPA).

Opinion Letter–FMLA 2019-3-A—Employers Must Designate Leave When There is Enough Information to Determine an Employee’s Leave Request Qualifies as FMLA Leave

The FMLA provides for unpaid leave to eligible employees for their own “serious health condition.” Employers are subject to strict time requirements when administering FMLA leave. This DOL letter analyzes whether an employee may delay designating paid leave as FMLA leave due to a collective bargaining agreement. The letter determines that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave.

Opinion Letter–FLSA 2019-13—Retail or Service Establishments May Not Count Weeks Instead of One Month When Determining Eligibility for FLSA Overtime Exemption

Section 7(i) of the FLSA exempts employees of a retail or service establishment from the overtime pay requirement of the FLSA if:

• The regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate; and
• More than half of the employee’s compensation for a “representative period” (not less than one month) represents commission on good services.

This DOL letter addresses the ordinary meaning of the phrase “not less than one month” for purposes of FLSA section 7(i)’s representative period requirement. The letter determines that four weekly pay periods, or two bi-weekly pay periods, is not a calendar month and therefore does not satisfy the statutory requirement for the exemption.

Opinion Letter–CCPA 2019-1—The CCPA limits the amount of a debtor’s disposable earnings that may be garnished.

This DOL letter addresses whether employers’ contributions to employees’ health savings accounts are earnings under the CCPA and determined that such contributions are not earnings under the CCPA.

For more information, please contact:

• Caroline J. Berdzik
• Peter J. Woo
• Christopher P. Maugans
• Kristin Klein Wheaton
• Or another member of our Employment and Labor practice