FLSA Opinion Letter on Residential Janitors

A new FLSA opinion letter reviews whether the FLSA’s minimum wage and overtime pay requirements apply to residential janitors, considering such employees are exempt under similar state law.

On March 14, 2019, the Wage and Hour Division of the U.S. Department of Labor actually issued three new wage and hour opinion letters. Individuals or entities may request an opinion letter from the Department’s Wage and Hour Division. These official written opinions provide guidance on how a particular law applies in the specific circumstances presented.

This article focuses on FLSA opinion letter 2019-1 and 2019-2. Click on the link to read our separate article addressing FMLA Opinion Letter 2019-1-A on Leave Delay.

State Law Exemptions and FLSA Compliance

FLSA 2019-1 addressed three issues relating to the application of the FLSA in light of a New York state law which exempts residential janitors, such as live-in superintendents that maintain multi-unit residential buildings, from state minimum wage and overtime requirements. No such similar exemption exists within the FLSA.

Minimum Wage and Overtime

First, the first FLSA opinion reviews whether the FLSA’s minimum wage and overtime pay requirements apply to residential janitors, considering such employees are exempt under similar state law.

If minimum wage and overtime laws at the federal, state, or local level differ from the FLSA requirements, employers must comply with both laws in a way that meets the standard which provides employees with the greatest protection. Thus, residential janitors are not exempt from the FLSA’s minimum wage and overtime requirements, despite a similar state law exemption.

Employer’s “Good Faith” Defense for Noncompliance

Next, the first FLSA opinion reviews whether an employer who relies on this state law exemption may be used to demonstrate “good faith” in its noncompliance with the FLSA. Such a good faith defense would permit the employer to avoid liquidated damages and the FLSA’s three-year back wage liability period.

In most cases, the statute of limitations for such claims under the FLSA is two years. The statute of limitations is extended to three years in cases of willful violations where the employer knew the conduct was prohibited or showed reckless disregard for the FLSA’s requirements. An employer that can show it had reasonable grounds for believing its act or omission was not a violation may, in the court’s discretion, have a “good faith” defense denying liquidated damages.

The Department of Labor’s Wage and Hour Division does not consider an employer’s reliance on a state law exemption from state law minimum wage and overtime requirements as an adequate basis for a good faith defense to noncompliance with the FLSA. However, the Division explained that courts retain the discretion to make that decision in each individual case.


Finally, the first FLSA opinion reviews how employers should track and record the hours that a residential janitor works. An employee who permanently resides or spends extended periods of time on the employer’s premises is not considered to be working all the time he is on the premises. Specifically, all time spent in normal private pursuits (such as eating, sleeping, entertaining, and other periods of complete freedom from all duties) is not considered hours worked.

In instances where the employer and residential janitor have reached a reasonable agreement about which hours will be worked considering all pertinent facts, employers need not keep precise records of the residential janitor’s working hours. Such records comply with the law if they generally coincide with the reasonable agreement. A new agreement must be made if the parties determine that the recorded hours significantly deviate from the initial agreement.

Community Service Time

FLSA 2019-2 addressed two issues regarding the time an employee spends volunteering both during and outside of normal working hours.

Compensability of Community Service Time

First, the second FLSA opinion reviews whether time spent on an employer’s optional volunteer program is hours worked under the FLSA when the employer provides a monetary bonus to the group of employees that has the greatest community impact.

The FLSA does not intend “to discourage or impede volunteer activities.” As such, the FLSA does not consider an individual an employee if he or she volunteers without contemplation or receipt of compensation and without coercion, undue pressure, or ramifications if an employee chooses not to participate.

Even if the employer actively promotes participation, volunteer hours are not hours worked so long as non-participation does not adversely affect the employee. Additionally, employers may compensate employees for volunteering during normal working hours without altering an employee’s volunteer status for such activities outside of normal working hours. Finally, an employer may use an employee’s volunteer hours outside of normal working hours as a factor in determining bonuses without treating those volunteer hours as hours worked if (1) volunteering was optional, (2) not volunteering has no adverse effect on the employee, and (3) the bonus is not guaranteed.

Tracking Volunteer Hours

Finally, the second FLSA opinion reviews whether an employer may track an employee’s volunteer hours on a mobile device application. The Department of Labor’s Wage and Hour Division explained that a mobile device application may be used to track an employee’s volunteer hours, so long as the employer does not use the application to direct or control the employee’s activities. Such direction or control occurs, for example, when the employer provides the employee with specific instructions about where or how an employee volunteers. If an employee spends time volunteering according to such instructions, those hours are considered hours worked under the FLSA.

What this Means for Employment Defense Law Firms and EPLI Panel Counsel

Legal Expert Connections, Inc. recommends, creates, and implements an education-based marketing program for employment defense law firms and practice groups. Educating employers about employment laws in order to insure compliance and avoid litigation is a significant portion of an employment defense lawyer’s work. This article is an example of how we can help employment defense law firms increase their visibility through blog posts, social media articles, client alerts, and continuing education seminars.

Employment Law Marketing Services for Defense Law Firms and EPLI Panel Counsel

This article is a sample of the content marketing services available from Legal Expert Connections, Inc., and not for reuse or republications without permission. We have helped more than 150 insurance defense law firms in 36 states pursue new insurance panel counsel clients and are very familiar with employment practices liability (EPLI) panels.

Legal Expert Connections, Inc. offers three key benefits to insurance defense law firms nationwide:

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Contact Margaret Grisdela, an insurance defense marketing consultant, at 561-266-1030 or via email. Connect with Margaret Grisdela on LinkedIn.


This article is provided for educational purposes only. It is not to be interpreted as legal advice or an opinion in regard to any topic discussed. The article should not be used as a substitute for legal advice from a licensed attorney in your state. Every situation is different and circumstances vary widely depending on the governing state law, policy provisions, and related considerations.

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