DOL ISSUES TWO OPINION LETTERS REGARDING COMPENSABLE TIME FOR WORKERS UNDER THE FLSA

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Wendy R. Hughes

November 10, 2020 Download as PDF

On November 3, 2020, the United States Department of Labor‘s (DOL) Wage and Hour Division (WHD) issued two opinion letters regarding compensable worktime under the Fair Labor Standards Act for employees who (1) attend voluntary training programs not involving any productive work (FLSA2020-15) and (2) travel to and from various job-site locations (FLSA2020-16).  The rules in question apply only to non-exempt employees (overtime-eligible).

FLSA2020-15 Letter – Compensability of Voluntary Employee Training

Generally, the FLSA requires employers to compensate employees for their work.  WHD regulations provide that “[a]ttendance at lectures, meetings, training programs and similar activities” does not need to be counted as working time, if the following four criteria are met.[i]

  • Attendance is outside of the employee’s regular working hours.
  • Attendance is voluntary.
  • The lecture, course, meeting, or training program is not directly related to the employee’s job.
  • The employee does not perform productive work during attendance.

Two exceptions (special situations) exist to the criterion that the class or program not be directly related to the employee’s job.  These exceptions include where the employer has established an instructional program for its employees that is comparable to courses offered by “independent bona fide institutions of learning,” or where an employee on her own initiative attends an independent school after work hours.[ii]  In these two instances, the WHD does not consider an employee’s attendance time to be hours worked – even where the courses are job-related.

In its opinion letter, the WHD considered a hospice care provider that funds continuing education units (CEU) for its employees.  The employer does not require its workers to use the CEU funds or attend any particular continuing education class.  Employee participation is always voluntary, and employees do not get any work-related benefit from attending these classes.  The employer presented the WHD with six different scenarios.  For each of these scenarios, the employees did not perform any productive work during attendance.

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FLSA2020-16 Letter – Compensability of Work-Related Travel

In this opinion letter, the WHD examined three scenarios involving travel of a construction company’s non-exempt foremen and laborers to and from local and remote job sites.  Travel time is compensable when it is “integral and indispensable to the principal [job] activities.”[iii]

Generally, “walking, riding, or travelling to and from the actual place of performance of the [employee’s] principal activity or activities” is not compensable worktime when it occurs before the employee starts her principal work activities or after she completes them.[iv]  When an employee is required to report to a work site to obtain instructions, to perform work there, or to pick up tools, her travel time is compensable.[v]

Overnight travel may be compensable depending on when the employee travels and how she travels.  Travel away from home during normal work hours is compensable because travel substitutes for other employee duties.  This statement is true for travel on non-work days as well.  However, the WHD does not consider passenger travel away from home and outside of regular working hours to be compensable.

The construction company has job sites at various locations.  For safety and security purposes, the company keeps its trucks at its principal place of business.  For each scenario, the foremen have to travel to the employer’s place of business to get a company truck and drive the truck to the job site where it is used to move around equipment and tools.  In each of the three scenarios, the foremen’s travel time between the employer’s principal place of business and the job sites is compensable according to the WHD because it is integral and indispensable to their principal job activities.  However, the foremen’s travel from home to the employer’s place of business and back is not compensable.

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These scenarios are illustrative and the WHD notes that the FLSA regulations do not address every employment scenario.  To read the WHD’s opinion letters in their entirety, please click here.  If you have questions about compensating employees for voluntary training or travel time, call us.  We are here to help.

 

[i] 29 C.F.R. § 785.27.

[ii] 29 C.F.R. § 785.31.

[iii] Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 519 (2014).

[iv] 29 U.S.C. § 254(a).

[v] 29 C.F.R. § 785.38.

 
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