The Department of Labor announced its return from winter vacation this week by issuing three new opinion letters. Two of the letters address Fair Labor Standards Act (“FLSA”) payment calculation issues; the other deals with the applicability of the Family and Medical Leave Act (“FMLA”) to a special health district.
The first FLSA letter (FLSA2020-1) concerns how an employee’s regular rate of pay is impacted by a non-discretionary bonus, payable after ten weeks of training. The DOL stated that the bonus should be allocated equally through the ten-week training period, because each week counted equally towards earning the bonus. If the employees worked overtime hours during the ten-week training period, the employer would have to add the pro-rated bonus amount to that week, adjust the employee’s regular rate, and accordingly calculate the additional overtime compensation owed.
The second FLSA letter (FLSA2020-2) involves educational consultants paid on a per-project basis, and whether or not those payments complied with FLSA regulations on a fee or salary basis. The DOL found that both methods complied with the salary basis requirements, where the consultant received regular, biweekly installment payments that were not dependent on the quantity or quality of the consultant’s work, among other factors. The DOL further found that a second project, with additional compensation, would not impact the employee’s exempt status.
The DOL’s FMLA letter (FMLA2020-1-A) determined that an Ohio health district did not have to include county employees for purposes of its own headcount to determine whether health district employees are eligible for FMLA leave, because the health district and county were not “a single public agency employer.” In reaching its conclusion, the DOL examined a number of factors, including but not limited to (1) Ohio law treats health districts as separate political subdivisions, (2) the health district can commence and defend lawsuits in their own name, and (3) the health district is fiscally independent from the county. Whether state agencies constitute a single public agency for FMLA purposes can only be determined on a case-by-case basis, generally based on if and how those agencies operate interdependently.
