U.S. Department of Labor Issues Several Guidance Documents
DOL Clarifies Paid Time Off Due to COVID-19 Related Child Summer Program Closures
On June 26, 2020, the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-4, addressing employee paid leave under the Family First Coronavirus Response Act (“FFCRA”) to care for a child whose summer camp, enrichment or other program is closed due to COVID-19. The FFCRA allows an employee paid leave (Expanded Family and Medical Leave - EFMLA) to care for a child whose place of care is closed due to COVID-19 related reasons. How can an employer determine whether an employee is eligible for EFMLA leave based on summer care? In short, the DOL instructs that the question is: “whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons, which must be established by a preponderance of evidence in any enforcement action (i.e. more likely than not).” The DOL recognizes a, “multitude of possible circumstances” regarding summer camp registration prevents a “one-size-fits-all rule”, but offers some general examples. Current/past enrollment, making a deposit, submitting an application and being accepted is generally sufficient proof. Mere interest in a camp or ineligibility is insufficient proof.
Closed School Is “In Session” When Virtual Learning Takes Place - Usually
On June 26, 2020, DOL issued Field Assistance Bulletin No. 2020-3, clarifying that, for purposes of federal child labor laws (which dictate hours of work for minors), schools that are physically closed are still “in session,” so long as the child is required to participate in virtual or distance learning. While summer school is considered “outside of school hours”, if a school district makes summer instruction mandatory to make up for lost instruction time due to COVID-19, then summer school is treated as an extension of the regular (mandatory) school schedule for purpose of hours of work.
DOL Issues Two Opinions Relating to Outside Salesperson Overtime Exemption
On June 25, 2020, the DOL issued two opinion letters concerning the exemption of outside salespeople. In FLSA-2020-6, the DOL opined that an employee qualifies for the outside sales exemption when deployed to high-population areas and events to sell products via stylized trucks (which is not itself a “place of business” as it is not fixed location), stocked with merchandise, marketing displays and demonstration units. In this set of facts, the salesperson is deployed at least 4 days per week (80%) with the truck at different locations each day. The salesperson is responsible for event planning and inventory management (done in the other the 20% of time), and is paid a base salary plus commission based on their sales (which they make using tablets issued to them). Accordingly, the DOL found the salespersons’ primary duty is making sales customarily and regularly away from the employer’s place of business, and thus, the exemption is proper.
In FLSA-2020-8, the DOL issued an opinion regarding the overtime exemption for outside salespersons in various situations where they set up displays and perform demonstrations at retail locations (not owned by their employer). As the opinion is limited to a very specific, unique type of outside salesperson, it can be instructive for providing examples of when an employee qualifies for the exemption (but way too much to specifically write about here!). In short, most of the examples for this type of salesperson were found to be exempt (working at home and garden shows, trade shows, and fairs). The exception/open question was when such employee is primarily located in a big-box third-party retailer, if they are obtaining commitments from customers and credited for those sales they are probably exempt; if not, they are merely promoting an employer’s product (versus selling) and probably not exempt.
Bonuses & Incentives Are Acceptable Under the Fluctuating Workweek Method for the Payment of Overtime
On May 20, 2020, the DOL published its final rule allowing employers to pay bonuses and incentives to employees who are paid a salary plus overtime on the fluctuating workweek method (“FWM”) of computing overtime (employees who are paid a salary whether they work few hours or many, plus 1/2 overtime rate - usually seasonal businesses such as landscaping). In the past, additional payments would cause the pay structure to be defeated, resulting in additional overtime due for each hour worked. In other words, employers had a disincentive to pay employees additional compensation such as bonuses. Now, employers may pay bonuses, premium payments, or other additional pay (i.e. commissions and hazard pay), to FWM employees (but must still be included in the regular rate unless excludable under the FLSA).
If you have questions regarding the above or any other employment-related concerns, please contact Corie Anderson at 952-921-4615 or firstname.lastname@example.org, or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.