DOL answers FLSA questions with 4 opinion letters

On May 28, the U.S. Department of Labor (DOL) issued four new opinion letters that answer questions about complying with the federal Fair Labor Standards Act (FLSA).

The agency provided insight into these issues:

Can an exempt employee also do non-exempt work and be paid hourly for it?

Yes, under the federal FLSA. An exempt employee can take on extra non-exempt work in a second role and be paid an hourly rate for that work without losing exempt status, as long as the employee’s main duty is still exempt work and the salary basis requirements are still met. In that case, the arrangement doesn’t automatically create overtime obligations.

In the example described by the DOL, an exempt employee worked additional non-exempt weekend shifts. The employer paid an hourly rate for those extra shifts, but the employee still received their full salary each week, no matter how many extra shifts they worked.

Can a quarterly bonus be paid without recomputing the regular rate and still comply with the FLSA?

Yes. A quarterly bonus can comply with the FLSA if it is calculated using a percentage of total earnings. In using that method, using both straight and overtime earnings, the bonus includes payment of the overtime premium that is due, and the employer doesn’t need to go back and recalculate the employee’s regular rate or pay extra overtime.

Do employers have to pay employees for time spent leaving the worksite during a meal break?

No. If the employer provides a true 30-minute meal period and the employees are fully relieved of duties during that time, the employer doesn’t have to pay employees for time spent voluntarily leaving the worksite to get or eat a meal.

The employer also doesn’t have to extend the meal period to cover the time employees spend leaving and returning to the work area before and after the meal.

Can employers avoid paying for pre-shift activities and waiting time, and round to the scheduled start time?

It depends on what the employee is doing before the shift begins. If the pre-shift activity is an integral part of the employee’s main job duties, that time must be paid. But employers generally don’t have to pay for time spent on activities such as waiting in line to clock in or out, as long as those activities happen before the employee begins principal work or after that work has ended.

The DOL warned, however, that rounding practices can violate minimum wage or overtime rules if employees are already doing compensable work before their scheduled shift starts.

In the example described, a company allowed employees to clock in up to 7 minutes early to reduce lines at time clocks. The system rounded those times to the scheduled shift start. But because some employees began working right after clocking in, the employer had to pay them for that time. The DOL noted that rounding to the shift’s start time, especially across a large workforce, could be seen as consistently favoring the employer.

Employers should be mindful of state or local requirements, as they might differ from federal requirements.

Key to remember: FLSA compliance depends on the specific facts and circumstances of each situation, but recent opinion letters from the DOL provide insight into how it looks at certain issues relating to bonuses, mealtimes, time clock rounding, and exempt employees doing nonexempt work.