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DOL Issues Three New Opinion Letters

On September 10, 2019, the Department of Labor’s Wage and Hour Division (WHD) issued three new opinion letters on the following issues:

  • FMLA2019-3-A: Addressing whether an employer may delay designating paid leave as FMLA leave due to a collective bargaining agreement;
  • FLSA2019-13: Addressing the ordinary meaning of the phrase "not less than one month" for purposes of FLSA section 7(i)'s representative period requirement; and
  • CCPA2019-1: Addressing whether employers' contributions to employees' health savings accounts are earnings under the Consumer Credit Protection Act.

An opinion letter is an official, written opinion by the WHD on how a particular law applies in specific circumstances presented by the individual person or entity requesting the letter. It is the administrative agency’s opinion on how the law should be applied which may be given deference by the courts.

Please note that on the FMLA topic, the WHD determined that an employer may not delay designating paid leave as FMLA leave even if the delay complies with a CBA and the employee prefers that the designation be delayed. The WHD reiterated its earlier position that "once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave." This position arguably contradicts the rulings of some courts, including the Ninth Circuit Court of Appeals’ 2014 ruling in Escriba v. Foster Poultry Farms, Inc. Accordingly, there is a difference of opinion on this issue and you should seek the assistance of a KZA attorney before relying upon the DOL’s opinion letter on this topic.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.