The United States Department of Labor’s (DOL) Wage and Hour Division (WHD) began to release opinion letters again that address relevant employment law uncertainties. The two most recent letters discussed compensable work time. More specifically, pay for travel time to those with irregular work hours, as well as break time under the Family and Medical Leave Act (FMLA).

The first letter spoke about the compensability of travel time. The DOL stated that traveling away from the employee’s home community is considered work-time when it cuts across the employee’s regular workday “as the employee is simply substituting travel for other duties.” The DOL was clear to communicate that compensable worktime does not include time spent commuting between home and work even when the employee works at different job sites. The compensation for this travel is to be determined by normal work hours, but the DOL recognized that certain employees do not have normal work hours. The DOL then proposed that an employer may determine an employee’s normal work hours for purposes of computing compensable travel time. The DOL suggested the permissible method of reviewing the employee’s time records during the most recent month of regular employment and to see if this reveals typical work hours from patterns.

In the second letter, the DOL discussed compensation for hourly workers who have FMLA certifications. The example used in the letter inquired if an employer needed to compensate an employee for rest breaks she received for a serious medical condition. This employee would receive a fifteen (15) minute break for every hour worked. The Wage and Hour Division (WHD) reiterated their rule that breaks that are generally 20 minutes or less primarily benefit the employer so they are considered compensable wages. In this case, the WHD decided that in this presented scenario the breaks are to benefit the employee and therefore not compensable. However, the letter additionally noted that any paid breaks the employer provided to other workers should be applicable and compensable to all workers– even those who use them as part of their FMLA breaks. To read the DOL letters, please visit the links attached:


Letter 1: Travel Time

Letter 2 : Break Time and the FMLA