Business Ownership, Employees, Human Resources

New U.S. Department of Labor Wage and Hour Opinion Letters


FLSA2019-1-A – The first question to the agency involved employers permitting employees to exhaust paid leave prior to designating the leave as FMLA leave? The second question was whether an employer can designate more than 12 weeks of leave as FMLA leave.

The opinion letter’s guidance is that employers cannot: delay the designation of FMLA qualifying leave as FMLA leave; or designate more than 12 weeks of leave as FMLA leave. This is not to say that an employer can’t grant more than 12 weeks of leave, but clarifies that only 12 weeks of any leave can be FMLA leave.


FLSA2019-2 – Provides guidance on whether the time an employee spends participating in an employer’s optional volunteer program must be counted as hours worked.

The employer posing the question provides an optional community service program for employees. The employer pays the employees for time spent on the volunteer activities during working hours, or while on the employer’s premises, but does not pay employees for such time outside normal working hours, or off-premises. The employees participate in groups, and a monetary award is given to the group with the greatest community impact. The employer can take into consideration the number of hours the individual employees volunteer when splitting the monetary award. It is important that the employer does not require employee participation, or direct or control the participation.

The opinion letter stated that participation in the employer’s program does not count as hours worked because the employer: does not require participation; does not control or direct the charitable work; imposes no adverse conditions on employees who do not participate; and does not guarantee a bonus for the volunteer work. Further, the letter says that the employer could use a mobile app to track the hours each employee spends volunteering, provided that the employer continues to not control or direct the volunteer work.

The full opinion letters can be found at: