DOL's Swan Song Leaves Employers With New Opinion Letters

In case you missed it, the ongoing federal government shutdown has closed down many federal offices. This includes our friends at the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC). However, not wanting to miss an opportunity to comment on legal issues, the DOL issued four new opinion letters, and issued them just before the shutdown bean. Below is a brief synopsis of what the DOL left for us to ponder while the federal government takes an extended break.

FMLA 2025–028

A question was asked of the DOL regarding the appropriate method of calculation of FMLA leave for correctional officers. These individuals work multiple 12-hour shifts over a two-week period. These shifts include mandatory overtime, and if they are especially excited about their job, they can also volunteer to work some extra hours.

So, the pivotal question to be answered by the DOL was as follows: for FMLA purposes how many hours do these correctional officers work? Most calculate FMLA hours as 40 hours a week for 12 weeks or 480 hours total. However, the DOL advised that it doesn't work that way for people working other than a 40-hour shift on different structured schedules. For that reason, the DOL instructed that the proper method is to take an average of the hours worked by the employee, although the DOL stated that the correctional officers' voluntary hours did not need to be included because those hours are not part of the standard work week equation.

The takeaway from this opinion letter is to average all employees' required weekly hours when measuring FMLA leave. Best practices would be to go back up to a year and average the employee's weekly hours in order to best calculate the proper FMLA hours. As always, when it comes to the FMLA, erring on the side of the employee is a prudent choice given the amount of latitude provided by statute, case law, and DOL interpretation.

FLSA 2025–03 Oyster Shucking

In this opinion letter, the DOL found that oyster shuckers in the front of restaurants are entitled to a share of money from the tip pool. This little pearl of DOL advice is not surprising. You generally don't shuck oysters at a table; it's easier for someone who doesn't do table service to shuck oysters, and then have a wait person deliver the oysters to the customer. For those of you who are not oyster crazy (I live for oysters), there are many different types of oysters. The front house oyster shuckers at issue in this opinion letter absolutely interacted and engaged with customers by detailing the different oysters and making suggestions to the customers. It therefore makes sense that these workers should be included in a tip pool because they, like sommeliers and waiters, are an integral part of the restaurant's operation.

You might be thinking,"I don't work at a restaurant, and I don't eat oysters." But this DOL opinion letter is still valuable as it gives us insight into the DOL's position regarding accounting for minimum wage. Because tipped employees don't generally make minimum wage, the employers are able to take credit for a portion of the tips to satisfy the minimum wage requirement. At the end of the day there is no situation in which an employee can legally receive less hourly renumeration than the federal minimum wage. This also reminds us that job descriptions and titles are only as good as the actual duties of the employees and the wages they receive for performing those duties.

FLSA 2025–05

This opinion letter discusses what we already knew; that if you have common ownership and a common location, all hours worked in different parts of the location must be included in overtime calculations. This DOL opinion letter addressed a situation in which employees who were waitstaff on one restaurant floor, and then, after they clocked out from their shift, they would go up to another floor to a "members' only" club. All of this took place in the same building, and all under common ownership. This opinion letter should remind us that wage and hour laws are not meant to be flexible; you cannot avoid FLSA regulations by simply having people clock in and out at two different companies while still performing work that is for the good of the collective "company." The argument that two different entities owned the restaurant and the club did not work here. Workplace reality is the litmus test, and even if you have employees working for five different companies, if the work is all being done in the same workweek and in the same location with some common ownership, this is almost certainly to be considered by the DOL to be a joint employer relationship for purposes of overtime compensation calculations.

FLSA 2025–04 Emergency Pay

It is a fundamental principle of the Fair Labor Standards Act that when assessing an overtime premium, employers must include any renumeration in the pay rate that is not discretionary. In this opinion letter, the DOL confronted a situation in which employees received an extra pay differential for hours worked during emergency situations. An employer might be tempted to argue that this type of emergency work should be compensated as a bonus for working in an emergency situation. However, per the DOL, this is most definitely not a bonus situation, because there is no discretion involved. The employee knows in advance that they will get this extra pay if they work in the emergent situation, and wages are wages. Thus, when determining the overtime premium for emergency pay, and also for more common events like shift differentials and bonuses, all must be taken into consideration when calculating the overtime premium to be paid.

Conclusion

These DOL opinion letters, issued as the sun was setting on the federal government, confirm the basic tenets of figuring overtime premiums; namely, all renumeration counts.
And if you've never had raw oysters, give me a call and I'll introduce you to these delightful comestibles.

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