U.S. Department of Labor Issues New Wage and Hour Opinion Letters

November 16, 2020

On Nov. 3, 2020, the U.S. Department of Labor’s Wage and Hour Division issued two additional opinion letters regarding what constitutes “work time” under the Fair Labor Standards Act (FLSA). The first opinion letter analyzes whether employees’ attendance at voluntary training lectures, meetings or programs is compensable. The second opinion letter addresses whether employers must compensate employees for time spent traveling.

Time Employees Spend Attending Voluntary Training Programs

The first opinion letter (FLSA 2020-15) discusses six scenarios involving a nonprofit hospice care provider that employs clinical staff — such as nurses, social workers, health aides and healthcare providers — who must complete continuing education requirements to maintain their respective professional licenses. The employer provides funds to each employee for continuing education and employees choose how to allocate their continuing education funds to attend classes. The DOL addresses the compensability of time spent in each of the scenarios.

Scenario No. 1: A nurse requests to use her education funds for an on-demand webinar directly related to her job that also counts toward her continuing education requirement for her nursing license. She decides to view the webinar in her off-work time. Is it permissible to treat this as unpaid time?

Opinion: Yes. The webinar corresponds to courses offered by an independent, bona fide learning institution; it satisfies a professional licensing requirement; the nurse viewed the webinar during her nonworking hours; and her attendance was voluntary. Therefore, the nurse need not be compensated for attending the webinar.

Scenario No. 2: An accounting clerk requests to use his education funds for an on-demand webinar that is directly related to his job but does not satisfy a continuing education requirement. The accounting clerk chooses to view it on his off-work time. Is it permissible to treat this as unpaid time?

Opinion: Maybe, but insufficient facts are provided in the scenario. A training does not have to fulfill a professional licensing requirement to be excluded from hours worked. Whether a training corresponds to courses offered by independent, bona fide institutions of learning depends on whether the course content is tailored to peculiar employer job requirements and whether the skill or knowledge imparted through training would enable an individual to gain or continue employment with any employer. Additional facts are needed to determine if attendance at this webinar satisfies that criteria.

Scenario No. 3: Same as Scenario 2, except the accounting clerk chooses to view it during working hours. Can an employer require the accounting clerk to substitute paid time off for the time spent viewing the webinar?

Opinion: When an employee participates during regular work hours in a training that directly relates to the employee’s job, it is time worked for FLSA purposes, regardless of whether the training is voluntary or mandatory. The DOL notes, however, for training that is truly voluntary, employers may establish a policy that prohibits employees from viewing such training during working hours.

Scenario No. 4: Same as Scenario 3, but the webinar is not directly related to his job. Is it permissible to require the accounting clerk to substitute paid time off for the time spent viewing the webinar?

Opinion: The viewing time qualifies as work time for FLSA purposes because the clerk viewed the webinar during his regular work hours.

Scenario No. 5: A nurse requests to use her education funds for an on-demand webinar that is not directly related to her job but counts toward her continuing education requirement. The nurse chose to view the webinar during working hours. Is it permissible to require the nurse to substitute paid time off for the time spent viewing the webinar?

Opinion: The viewing time qualifies as work time for FLSA purposes because the nurse viewed the webinar during her regular work hours.

Note regarding paid time off: Scenarios 3, 4 and 5 ask about substituting PTO for the time spent viewing the webinar. The opinion letter does not address these questions. Presumably, however, as long as the employee is properly compensated, the FLSA will not prohibit an employer from deducting from an employee’s leave bank.

Scenario No. 6: A nurse requests to use her education funds for an in-person, weekend, out-of-town conference that covers several topics, some of which directly relate to her job and some of which do not. The travel and conference cut across her normal work hours, but the conference events occur on days that she does not normally work. Does the nurse have to be paid? If so, can the employer require the nurse to substitute paid time off for the time spent traveling and attending?

Opinion: The nurse does not have to be compensated for any travel or training time, as long as her participation in the training is voluntary and she does not perform any productive work during the trip. In this case, the training: (1) occurs outside the nurse’s regular working hours; and (2) appears to correspond to courses offered by independent, bona fide institutions of learning. Accordingly, the travel would be deemed personal travel time and not compensable.

Travel Time for Foremen and Laborers

The second opinion letter (FLSA2020-16) addresses non-exempt foremen and construction laborers who work for a construction company that keeps its trucks at its principal place of business (headquarters). Foremen are required to travel to headquarters to retrieve a company truck; drive the truck to the job site, where it is used to transport tools and materials around the job site; and return the truck to headquarters to secure it. Each scenario asks whether travel time is compensable.

Scenario No. 1: The job site is local (close to or within the same city as the employer’s headquarters). Foremen pick up the truck, drive it to the job site and return it at the end of the day. Laborers may choose to drive directly to the job site or drive to the headquarters and then ride to the job site with the foremen. What time is compensable?

Opinion: For the foremen, the travel time from headquarters to the job site is compensable. For the laborers, their travel time to and from the local job site is normal commuting between home and work, which is not compensable. Their choice to meet at headquarters and ride with the foreman in the company truck does not transform their commute into compensable work time.

Scenario No. 2: The job site is remote (between 90 minutes and four hours away from headquarters). The employer pays for hotel accommodations and provides a per diem meal stipend. Foremen pick up the truck at headquarters at the beginning of the job, drive it to the site and return it at the end of the job. Laborers drive personal vehicles to and from the remote job site at the beginning and end of the job, but some choose to drive to headquarters and ride with the foremen.

Opinion: For the foremen, the travel time from headquarters to the job site is compensable. For the laborers, daily travel from the hotel to the job site is not compensable. The laborer’s travel to and from the job site at the beginning and end of the job, however, is compensable if their travel cuts across their normal work hours, even if they are traveling on what would otherwise be a non-work day. If the employer offers to transport laborers to the remote job sites in the company trucks but a laborer chooses to drive his own vehicle, the employer would have the option to count as compensable work time either: (1) the actual amount of compensable time the laborer accrues in driving to the remote job site; or (2) the amount of time that would have accrued during travel in the truck.

Scenario No. 3: Same as Scenario 2, but the laborers choose to travel between the remote job site and their homes each day rather than stay at the hotel.

Opinion: The laborer’s travel to and from the job site at the beginning and end of the job would be treated the same as in Scenario 2. However, the laborer’s intervening drives home and back to the remote job site would not be compensable.

These opinion letters, which the DOL resumed issuing in 2017, address complex and highly fact-specific compensable time issues that can be challenging for employers to navigate. In addition to providing guidance on the specific scenarios addressed, the 16 opinion letters the DOL has issued this year may provide employers with the basis for a good-faith defense to employee claims.

For assistance in compliance with the FLSA, or for any other question related to employment law, contact the authors of this article or another member of the McGuireWoods labor and employment team.

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