US Secretary of Labor, Alexander Acosta, recently announced the creation of a new office, the Office of Compliance Initiatives. The “OCI” will be tasked with promoting greater knowledge of federal labor laws and regulations through enhanced compliance assistance outreach efforts. The goal of the OCI initiative is to prevent workplace violations.

The OCI has been tasked with:

  • Facilitating and encouraging a culture that promotes compliance assistance within the Department;
  • Providing employers and workers with access to high-quality, up-to-date information about their obligations and rights under federal labor laws and regulations;
  • Assisting enforcement agencies in developing new strategies to use data for more impactful compliance and enforcement strategies;
  • Enhancing outreach to stakeholders for the Department’s enforcement agencies.

Additionally, the OCI will assist enforcement agencies in developing an effective online presence. The OCI will implement two new websites, one targeted towards employers and one towards workers. These two sites are envisioned as creating a centralized source of information regarding federal worker protections and employer obligations.

The DOL’s Six New Opinion Letters

As part of the DOL’s renewed focus on assisting employees with understanding their rights and assuring that employers are provided the information needed for compliance, the DOL recently issued six opinion letters. They address:

  1. Volunteer Status: Non-profit organization Graders may be reclassified as volunteers rather than employees, and non-profits need not pay Grader’s fees. Non-profits, however, may continue to pay for Graders’ travel, lodging, meal and other expenses incidental to volunteering without diminishing their volunteer status.
  2. Retail / Service Section 7(i) Exemption: Business-to-business sales may be considered “retail” for the purposes of the Section 7(i) exemption from overtime. The opinion letter addressed employees of a company selling a technology platform to another business and found they qualify for the retail or service overtime exemption, despite the fact the customer and end-users are primarily commercial entities.
  3. No Fault Attendance Policies: Suspending the roll off of points during an FMLA leave under a no-fault employee attendance policy does not violate the FMLA. Here, the DOL determined an employee does not lose a benefit that accrued before taking the leave or any additional benefit to which he / she was not otherwise entitled. If, however, an employer counts equivalent types of leave as “active service” under the no-fault attendance policy, then an employer may not exclude FMLA leave.
  4. Organ Donors under the FMLA: Organ donation surgery can qualify as a “serious health condition”. As such, an organ donor may use FMLA leave for post-operative treatment.
  5. Participation in Wellness Activities: Voluntarily participating in wellness activities, such as benefits fairs or biometric screenings, on-site or during working hours is not compensable time, as these activities are for the benefit of the employee rather than the employer.
  6. Movie Theater Exemption: Food service employees who are “functionally integrated” with a movie theater’s operations are exempt from overtime requirements.

Impact on Employers

The effectiveness of the DOL’s increased efforts to assist employers with understanding their obligations under federal employment laws and regulations remains to be seen. The DOL’s decision to resume issuing opinion letters is a welcome development as it supplies employers with additional direction on previously unresolved legal issues. Employers should stay abreast of DOL opinion letters as they are issued to ensure future compliance.