Earlier this month, the Department of Labor issued a few interesting opinion letters which will be of interest to both employers and employees. One involved the FMLA and the others the FLSA. In FMLA2026-2, the DOL instructed that FMLA time off includes time travelling to and from the medical provider office, which should not have been necessary to explain. In FLSA2026- 2, the DOL confirmed that the regular rate must include the generous safety/punctuality bonus when calculating overtime pay. In FLSA2026-4 (1/5/26), the DOL explained that the federal exemption for commissioned workers in section 7(i) only requires that the pay be more than the federal minimum wage, but that the employer could still be in violation of similar exemptions under state law if the pay was not sufficiently higher than the higher state minimum wage and that tips only count towards the pay if the employer utilizes the tip credit. Finally, in September, the federal district court in Columbus issued an opinion on when a work-from-home employee’s working hours begin and end each day.
In Opinion FMLA2026-2 (1-5-26), the inquiry asked about how much
time off the FMLA would require when the medical provider indicated that the
employee needed time off for 45-minute medical appointments, but the employee
claimed that s/he needed 1 hour travel each way from home to the office of the
medical provider. “For the reasons set
forth below, an employee may use FMLA-protected leave that counts against his
or her FMLA entitlement to travel to or from a medical appointment for a
serious health condition.” Additionally, a health care provider need not
provide an estimate of an employee’s travel time to or from an appointment for
the medical certification to be complete and sufficient under the Act. “
In Opinion FLSA2026-
2 (1-5-26), the inquiry involved whether the regular rate (used to
calculate overtime pay) must include the safety/punctuality bonus (up to
$9.50/hour) on top of the $12/hour wage contractual rate when calculating
overtime anytime it is earned. The answer was yes. “[T]he rule for determining the regular rate
of pay is to divide the wages actually paid by the hours actually worked in any
workweek[.]”
In FLSA2026-4
(1/5/26), the inquiry involved the commissioned employee’s exemption under
section 7(i) when state minimum wage exceeds federal minimum wage. The DOL explained “an employee of a
qualifying retail or service establishment paid more than one and one-half
times the federal minimum wage satisfies the minimum pay standard in
section 7(i)(1). “ Therefore, “the
exemption currently requires that the employee’s regular rate exceed $10.875
per hour ($7.25 × 1.5)—or, for practical purposes, that the employee’s regular
rate be at least $10.88 per hour—for any workweek in which the employer claims
the exemption.” That being said, this
does not answer whether using the federal minimum wage could violate the
state law which requires employers to pay a higher minimum wage.
Moreover, although tips are not commissions under section
7(i), in some circumstances, a portion of an employee’s tips would be
compensation for purposes of determining whether an employee is primarily paid
by commission under section 7(i)(2). This
would depend on whether employer utilizes the tip credit or not.
In Lott v. Recker Consulting, LLC, 798
F. Supp. 3d 778 (S.D. Oh 2025), the Court addressed when the workday begins for remote workers. Plaintiffs claimed that they were not paid
for time spent logging and clocking in before work and end of lunch and logging
out each day – entitling them to unpaid overtime, etc. The Court decided that
the workday starts at the moment a
remote worker opens and begins operating a program or application they use as
part of the principal work activities they are employed to perform. By the same
token, the workday ends at the moment the employee closes out of the last such
program or application. In the Court's view, this better reflects the
relationship between the employee and the computer in terms of job performance.
The Court rejected the argument that the workday began as
soon as the employee turned on his or her computer.
In short, the question is not when
an employee has powered on or logged into their computer. Rather, the question
is when they have configured that computer to perform the tasks they are
employed to perform—or stated differently, when they have loaded the first
application that they use to perform their job.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
