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DOL Issues Six New Opinion Letters

On August 28, 2018, the Department of Labor, Wage and Hour Division, issued six new opinion letters on issues under the Fair Labor Standards Act and Family Medical Leave Act. They are summarized below:

  • “No-fault” attendance policies and roll-off of attendance points under the FMLA – attendance policy that “freezes” attendance points accrued prior to FMLA leave for duration of leave, thus extending the calendar “roll off” period, does not violate FMLA provided it is applied in a non-discriminatory fashion (i.e., similar principles apply to other types of leave, such as worker’s compensation leave). Removal of absenteeism is a reward for working and therefore an employment benefit, which need not accrue during a period of FMLA leave.
  • Organ donors’ qualification for FMLA leave – leave to undergo surgery to donate an organ qualifies as a “serious health condition,” even though the employee donating the organ is in good health. Organ donation surgery generally involves either “inpatient care” or “continuing treatment.”
  • Compensability of time spent voluntarily attending benefit fairs and wellness activities – time spent voluntarily attending wellness activities, such as biometric screening (e.g., cholesterol levels, blood pressure, nicotine usage, etc.), health education lectures, fitness programs, benefit fairs, etc., none of which are related to the employees’ jobs, does not constitute “hours worked” and need not be compensated, even if it occurs during work hours. Activities primarily benefit the employee, not the employer, and the employee is relieved of all duties while participating.
  • Application of the movie theater exemption to theater that offers dining services – overtime exemption for employees employed by a “motion picture theater” applies to restaurant/food service operations within theater, provided they are located on the same premises, functionally integrated with the theater operations, employees interchange between units and the business spends at least 50% of its time showing motion pictures.
  • Application of “retail or service establishment” exemption to sales reps at company that sells internet payment software – overtime exemption for employees who work at retail or service establishment applies to company that sells software to online and retail merchants that allows them to accept payments online, from a mobile device or in-person – software is sold to end-user, even though commercial entity; sale is retail, sold to individual purchaser, not wholesale; and, software is designed for each merchant and cannot be resold.
  • Volunteer status of nonprofit members serving as credentialing examination graders – individuals who serve as global “graders” of professional credentialing examinations for non-profit organization qualify as volunteers, since they are performing services for service-oriented reasons (e.g., giving back to the profession, promoting the highest standards of ethics, education, etc.), free from any coercion or undue pressure.

If you have any questions about wage and hour issues, the Fair Labor Standards Act or issues under the FMLA, feel free to contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or

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