New DOL Opinion Letters Discuss FMLA, Overtime Exemption and Employment Status

On August 8, the U.S. Department of Labor’s (DOL’s) Wage and Hour Division (WHD) issued three new opinion letters that address: (1) whether attending a Committee on Special Education (CSE) meeting to discuss a child’s Individualized Education Program (IEP) qualifies as Family Medical Leave Act (FMLA) leave; (2) the application of the 29 USC §207(k) overtime exemption to public agency employees engaged in both fire protection and law enforcement activities; and (3) the employment status of volunteer reserve deputies who perform paid extra duty work for third parties [WHD News Release No. 19-1469-NAT, 8/8/19].

Qualifying intermittent FMLA leave.  In the first opinion letter, the WHD concludes that an employee’s need to attend CSE/IEP meetings addressing the educational and special medical needs of her children, who have serious health conditions as certified by a health care provider, is a qualifying reason for taking intermittent FMLA leave. The attendance of these meetings is “care for a family member…with a serious health condition” [29 CFR §825.100(a)]. According to the WHD,  includes taking leave to help make medical decisions on behalf of a hospitalized parent or to make arrangements to find suitable childcare for a child with a disability. The WHD noted that an employee may arrange for changes in care even if that care does not involve a facility that provides medical treatment. It added that the employee’s attendance at IEP meetings is essential for providing physical or psychological care to her children. A doctor does not need to be present at CSE/IEP meetings in order for the leave to qualify for intermittent FMLA leave [FMLA2019-2-A].

Overtime exemption for public agency employees. In the second opinion letter, the WHD  concludes that an employee of a public agency who works for both the agency’s fire department and its police department is not entitled to any overtime pay based on the examples provided. In one example, the employee’s total hours in a 28-day work period are no more than 172, with most work time spend in fire protection. Since the majority of work time was spent in fire protection, the fire protection maximum hours standard applies [29 CFR §553.213(b)]. And because the maximum hours an employee may work within a fire department in a 28-day period, and remain within the partial overtime exemption provided by 29 USC §207(k) is 212, the employee does not have to be paid overtime. The WHD drew a similar conclusion from the second example since the total hours worked was 196, with the majority being in fire protection. The WHD added that had the employee’s hours been flipped and the majority of hours worked for the 28-period were in law enforcement activities, the lower maximum of 171 hours for law enforcement employees would have applied and the employee would have qualified for overtime [FLSA2019-11].

Employment status of volunteer reserve deputies. In the third opinion letter, the WHD concludes that the volunteer Reserve Deputies’ performance of extra duty work for third parties does not result in the loss of their volunteer status and thus are not employees under the Fair Labor Standards Act (FLSA). First, the Reserve Deputies volunteer for the Sheriff’s Office and are not otherwise employed by the Sheriff’s Office. Also, the volunteer Reserve Deputies in the program are not “compensated” merely by receiving potential access to extra duty work. The Reserve Deputy program has existed for about 35 years, but the Deputy Sheriff’s Association did not make extra duty work available to Reserve Deputies until several years ago, due to a significantly increased demand for such services. Whether the volunteer Reserve Deputies actually perform extra duty work depends on the needs of third parties who request security services, among other factors. There is no indication that such access induces individuals to volunteer as Reserve Deputies.

The WHD noted that even if a volunteer’s access were to be construed as compensation, such access would be a “reasonable benefit” for volunteering and would not alter his or her volunteer status [29 USC §203(e)(4)(A)(i)]. In addition, the WHD said there is no indication that the Sheriff’s Office manipulated or abused the minimum wage or overtime pay requirements by coercing or unduly pressuring individuals to volunteer as Reserve Deputies [29 CFR §553.101]. Rather, the Reserve Deputies appear to be offering their services without any expectation of compensation, and without any pressure or coercion [FLSA2019-12].