The U.S. Department of Labor Issues Six New Opinion Letters (Part 1 of a 2- Part Series)

By SHLC on September 17, 2018 in Uncategorized

On August 28, 2018, the U.S. Department of Labor (DOL) issued six new Opinion Letters addressing various matters under the federal Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). According to the DOL’s press release, this new guidance “demonstrates the agency’s continued commitment to providing meaningful compliance assistance to help employees understand their rights and ensure that employers have the information they need to comply with federal labor laws.”


An Opinion Letter is an official, written opinion of the DOL’s Wage and Hour Division regarding how a particular law applies in specific circumstances presented by the person or entity requesting the letter.  These new opinion letters address compliance under both the FLSA and FMLA, and concern the following issues (discussed in more detail in Part 2 of this blog which will be published in a few days):


  • Organ donors’ qualification for FMLA leave.
  • ”No-fault” attendance policies and roll-off of attendance points under the FMLA.
  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities ( Part 2).
  • Application of the movie theater overtime exemption to a movie theater that also offers dining services (Part 2).
  • Application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform (Part 2).
  • Volunteer status of nonprofit members serving as credentialing examination graders (Part 2).


In a separate DOL news release, the DOL also announced its new Office of Compliance Initiatives (OCI) aimed at strengthening employer compliance assistance. As part of the initiatives, the DOL has launched new websites at  and which provide resources to assess compliance with the law.


OCI’s work will include:

  • Facilitating and encouraging a culture that promotes compliance assistance within the Department.
  • Providing employers and workers with access to high-quality, up-to-date information about their obligations and rights under federal labor laws and regulations.
  • Assisting enforcement agencies in developing new strategies to use data for more impactful compliance and enforcement strategies.
  • Enhancing outreach to stakeholders for the Department’s enforcement agencies.


Organ Donation Surgery Can Qualify as Serious Health Condition under FMLA


FMLA2018-2-A involves organ-donation and whether organ-donation surgery can qualify as a “serious health condition” under FMLA. The WHD concluded that it can.


The letter answers two questions:


  • Whether an employee who donates an organ can qualify for FMLA leave, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health.
  • Whether an organ donor can use FMLA leave for post-operative treatment. Organ-donation surgery typically requires an overnight stay in a hospital.


An organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “inpatient care” under Section 825.114 or “continuing treatment” under Section 825.115. Thus, an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital. Of course, that is not the only means for organ donation to involve “inpatient care” or “continuing treatment.” Organ-donation surgery, however, commonly requires overnight hospitalization and that alone suffices for the surgery and postoperative recovery to qualify as a serious health condition.


California Employers: Under California law, employers with 15 or more employees are required to provide job-protected paid leave for employees who donate an organ or bone marrow. The leave is not considered a break in service in terms of seniority, salary adjustments, sick leave and vacation.


No-Fault Attendance Policies May Not Violate FMLA


FMLA2018-1-A involves a policy that effectively freezes, throughout the duration of an employee’s FMLA leave, the number of attendance points that the employee accrued prior to taking his or her leave.




Under the employer’s attendance policy, employees accrue points for tardiness and absences. Employees do not accrue points for certain absences, however, including absences that are FMLA-protected, or absences for workers’ compensation, vacation, and other specified reasons. An employee is automatically discharged if he or she accrues eighteen points. Points remain on an employee’s record for twelve months of “active service” after accrual, although the policy does not define “active service.” An employee’s points are extended for the duration of his or her FMLA leave. Thus, an employee returns from FMLA leave with the same number of points that he or she accrued prior to the leave, and the points may remain on his or her record for more than twelve months. The same is true concerning other types of leave for which employees do not accrue points, such as workers’ compensation-related leave.


DOL’s Opinion


Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA. The number of accrued points remains effectively frozen during FMLA leave under the employer’s attendance policy. An employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled. The Wage and Hour Division’s (WHD) longstanding position is that such practices do not violate the FMLA, so long as employees on equivalent types of leave receive the same treatment. If the employer, however, counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave.


Such a policy does not violate the FMLA, provided it is applied in a non-discriminatory manner.



  • Update employee policies. Employers should review their policies and procedures to determine whether existing policies need to be modified in light of the new DOL Opinion Letters.


To read part 2 of this blog post, click here.