Continuing its early pattern of reversing positions adopted during the former administration, on February 19, 2021 the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) withdrew two more Opinion Letters. The first, Opinion Letter FLSA2019-6, addressed whether service providers for a virtual market company were properly classified as independent contractors or in fact were employees. Given the DOL’s recent proposal to delay the effective date of the Independent Contractor Final Rule that was published in early January 2021, with the likely intent of ultimately issuing a new rule, the Agency’s withdrawal of FLSA2019-6 was not surprising.

Perhaps more surprising was the withdrawal of Opinion Letter FLSA2019-10, issued in July 2019. In that Opinion Letter, the DOL concluded that if a truck driver, or driver’s assistant or helper, is completely relieved of duty and is provided with adequate sleeping facilities (including the truck’s sleeping berth), the individual is not “working while riding” and therefore is not entitled to compensation for that time – regardless of how many hours a particular trip lasts or how much duty-free time is provided on that trip. Despite its acknowledgment when issuing FLSA2019-10 that its prior guidance was “unnecessarily burdensome” on employers and that the position taken in FLSA2019-10 promoted a more straightforward reading of the applicable regulations, the DOL nevertheless has now readopted its former position, that only up to 8 hours of sleeping time may be excluded in a trip 24 hours or longer, and no sleeping time may be excluded for trips under 24 hours.

If you have any questions about this development, or any wage and hour or  issue, please consult the Jackson Lewis attorney(s) with whom you regularly work.

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Photo of Katharine C. Weber Katharine C. Weber

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. She has successfully assisted countless clients in handling their labor and employment issues in both…

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. She has successfully assisted countless clients in handling their labor and employment issues in both Ohio and Kentucky.

Katharine has experience litigating wrongful discharge cases; managing discrimination cases; negotiating collective bargaining agreements; representing employers before the Equal Employment Opportunity Commission and other federal, Ohio and Kentucky agencies; advising management on employment relations; drafting employee handbooks; and negotiating severance agreements.

Katharine regularly advises clients on wage and hour issues. Over the past five years she has served as lead counsel on various wage and hour class and collective actions filed in both Ohio and Kentucky involving claims of misclassification, off the clock work, and other violations for which the plaintiffs claimed to be owed substantial overtime.

Additionally, Katharine is extremely knowledgeable in the area of the Americans with Disabilities Act, and the Family and Medical Leave Act, and brings sophisticated, yet easy to understand advice on handling and defending against sexual harassment claims. From helping clients analyze options and making recommendations on how to handle employee relations issues, to representing clients in complex discrimination cases, Katharine always provides creative solutions and passionate advocacy for her clients. She is also very involved in the transportation industry and has successfully litigated several cutting-edge employment law cases which have been of great benefit to transportation industry employers.