DOL Opinion Letters on Voluntary Training Time, Travel Time

Wednesday, November 4, 2020

On November 3, 2020, the U.S. Division of Labor’s Wage and Hour Division (“WHD”) issued new opinion letters addressing the compensability of time spent by staff attending voluntary coaching applications and in work-related journey.

The principles at challenge solely apply to non-exempt (e.g., overtime-eligible) staff. If the time is taken into account “hours labored” underneath the FLSA, it’s not solely compensable, but it surely should even be included in counting the variety of hours labored for functions of figuring out whether or not the weekly additional time threshold has been met—no matter whether or not the worker is paid hourly, by way of a wage, or on another foundation.

Voluntary Coaching Time

In FLSA2020-15, WHD examined a hospice care supplier that gives funds to non-exempt staff for persevering with training. The workers should not have to make use of the funds, or to attend any explicit persevering with training courses. The persevering with training is fully voluntary, and the staff achieve no work-related profit from attending and incur no penalties for not attending.

Below the FLSA laws, employers should pay staff for time spent in coaching, instructional, and comparable applications except the entire following 4 standards are met:

Attendance is outdoors the worker’s common working hours;
Attendance is voluntary;
The coaching, training, and so forth. shouldn’t be associated to the worker’s job; and
The worker doesn’t carry out any productive work throughout such attendance.

With respect to the third requirement, the laws present two exceptions. First, underneath 29 C.F.R. §785.30 (the “unbiased coaching” exception), if staff on their very own initiative attend an unbiased faculty, school, or commerce faculty after hours, the time shouldn’t be thought-about hours labored (and subsequently shouldn’t be compensable) even when the programs are associated to their jobs. Second, underneath 29 C.F.R. §785.31 (the “particular conditions” exception), time spent by staff outdoors of working hours voluntarily attending programs established by their employer for the good thing about staff (and which correspond to programs supplied by unbiased bona fide establishments of studying) shouldn’t be thought-about hours labored even when the programs are immediately associated to their jobs.

Within the opinion letter, WHD checked out six completely different situations, in every of which it was assumed that worker attendance was voluntary and that the staff didn’t carry out any productive work:

Situation
Opinion
Notes
An on-demand webinar immediately associated to the worker’s job, which counts towards the worker’s skilled licensing necessities for persevering with training, considered after working hours.
Not compensable time, underneath the “particular conditions” exception.
Whether or not the course is obtainable by the employer or by a 3rd occasion is immaterial, as is the truth that the nurse may have considered the webinar throughout working hours.
An on-demand webinar immediately associated to the worker’s job, which does not depend towards the worker’s persevering with training necessities, considered after working hours.
Unclear on the information offered to WHD.
If further information demonstrated that the webinar corresponds to programs supplied by unbiased bona fide establishments of studying, and the opposite regulatory necessities are met (e.g., voluntariness, no productive work), the time wouldn’t be compensable. Equally, if the worker attends an unbiased faculty, school, or commerce faculty and the webinar is a part of that attendance, the time wouldn’t be compensable.
An on-demand webinar immediately associated to an worker’s job, which does not depend towards the worker’s persevering with training necessities, considered throughout working hours.
Compensable, as a result of it takes place throughout working hours.
The employer can set up a coverage prohibiting viewing throughout common working hours.
An on-demand webinar in a roundabout way associated to an worker’s job, which does not depend towards the clerk’s persevering with training necessities, considered throughout working hours.
Compensable, as a result of it takes place throughout working hours.
The employer can set up a coverage prohibiting viewing throughout common working hours.

An on-demand webinar not immediately associated to an worker’s job, which counts towards the worker’s skilled licensing necessities for persevering with training, considered throughout working hours.

Compensable, as a result of it takes place throughout working hours.
The employer can set up a coverage prohibiting viewing throughout common working hours.
An out-of-state weekend convention with some subjects that relate on to an worker’s job and a few subjects that don’t, parts of which depend towards the worker’s skilled licensing necessities for persevering with training. Each the journey and the convention lower throughout the worker’s regular work hours, however the precise convention happens on days the worker doesn’t usually work.
Not compensable time, underneath the “particular conditions” exception.

As a result of the time spent attending the convention shouldn’t be thought-about hours labored, the journey time is equally excludable as private journey time.

Journey Time

In FLSA2020-16, WHD examined a building firm whose non-exempt foremen and laborers work at job websites in varied places. The foremen journey to the corporate’s headquarters originally of a job or work day to retrieve an organization truck; drive the truck to a job web site, the place the truck transports instruments and supplies; and return the truck to the corporate’s headquarters on the finish of the job or work day. Laborers have the selection of driving on to the job web site originally of the work day or driving to the corporate’s headquarters and using to the job web site with a foreman.

Below the FLSA laws, an worker’s common commute from house to work originally of the work day, or from work to house on the finish of the work day, shouldn’t be compensable. That is true whether or not the worker works at a set location or at completely different job websites. Against this, when an worker is required to report to 1 work location (e.g., to retrieve directions, to select up instruments or supplies, or in any other case to carry out work) after which to journey to a different work location that very same day, the journey time from the primary work location to the subsequent is taken into account “all within the day’s work” and is compensable underneath 29 C.F.R. § 785.38. Equally, underneath 29 C.F.R. § 790.6(a), journey time is compensable whether it is a part of a “steady workday”—that’s, if it happens after the worker begins the primary principal exercise on a workday and earlier than the worker ceases the efficiency of the final principal exercise on a workday.

Two exceptions to the “steady workday” doctrine exist—for bona fide meal intervals and for off obligation time. Below 29 C.F.R. § 785.19, bona fide meal intervals (ordinarily of 30 minutes or longer) throughout which an worker is totally relieved from obligation should not compensable. Below 29 C.F.R. § 785.16, intervals throughout which staff are utterly relieved from obligation and that are lengthy sufficient to allow them to make use of the time successfully for their very own functions should not hours labored.

Below 29 C.F.R. § 785.39, when work-related journey consists of an in a single day keep away from the worker’s house neighborhood, the journey time that happens in the course of the worker’s regular work hours is compensable, no matter whether or not the journey happens on one of many worker’s regular workdays or whether or not it happens on what would in any other case be a non-workday. Conversely, journey time that happens outdoors the worker’s regular work hours shouldn’t be compensable, no matter whether or not the journey happens on a workday or non-workday. For instance, if an worker who’s required to journey and keep in a single day in one other metropolis is often scheduled to work 9:00 a.m. to five:00 p.m. Monday by way of Friday and the worker is required to journey between the hours of 6:00 p.m. and 11 p.m. (on any day of the week), such journey time is compensable. If, nonetheless, the worker is required to journey between the hours of 9:00 a.m. and 5:00 p.m. (on any day of the week), such journey time is compensable.

Within the opinion letter, WHD checked out three completely different situations:

Situation 1: The job web site is near or throughout the similar metropolis as the corporate’s headquarters.
Situation 2: The job web site is between 90 minutes and 4 hours’ journey time from the corporate’s headquarters, and the corporate pays for lodge lodging close to the job web site in the course of the length of the job. The laborers keep within the lodge in the course of the length of the job.
Situation 3: Identical information as Situation 2, however the laborers select to journey between the job web site and their properties every day fairly than keep on the lodge.

In every of the three situations, the foremen’s journey time between the corporate’s headquarters (the place they retrieve the corporate truck) and the job web site is compensable. The retrieval of the truck is integral and indispensable to the principal actions the foremen are employed to carry out, and the journey time falls throughout the “all within the day’s work” regulation.

In Situation 1, the laborers’ journey time to and from a neighborhood job web site shouldn’t be compensable, no matter whether or not they commute on to and from the job web site or whether or not they select to satisfy on the firm’s headquarters and trip with the foremen in an organization truck to the job web site.

In Situation 2, the laborers who drive their private automobiles to the job web site originally of the job and to their properties on the finish of the job have to be paid for such time spent driving to the extent it cuts throughout their regular work hours, even when they’re touring on what would in any other case be a non-work day. The identical rule applies if the laborers are passengers in others’ automobiles. If, nonetheless, the corporate affords a laborer the chance to trip to the distant worksite with a foreman in an organization truck (through which case the laborer would meet the foreman on the firm’s headquarters), the corporate might select to depend as hours labored both (a) the time that accrues throughout a visit within the firm truck or (b) the time the laborer truly takes to journey to the distant worksite. For instance, if the corporate offers a laborer the chance to trip with a foreman in an organization truck and that journey would take three hours, however the laborer chooses to drive immediately from house to the worksite and that journeys takes 4 hours, the corporate would solely should pay for 3 hours of journey time.

As soon as on the job web site, the journey time from the lodge to the job web site originally of the day, and from the job web site to the lodge on the finish of the day, is taken into account a part of the on a regular basis commute and isn’t compensable.

In Situation 3, through which the laborers select to drive from their properties to the distant job web site every day (and don’t remain in a single day on the lodge), the preliminary drive to the job web site originally of the job and the ultimate drive house on the finish of the job is handled the identical means as in Situation 2—the time is compensable to the extent it cuts throughout their regular working hours (topic to the corporate’s proper to pay for fewer hours if the corporate affords the laborers the chance to trip with a foreman in an organization truck, that trip would take fewer hours, and the laborers decline the chance and select to drive themselves). Other than the preliminary drive to the job web site originally of the job and the ultimate drive house on the finish of the job, the laborers’ journey time house and again to the job web site in the course of the length of the job is taken into account a part of the on a regular basis commute and isn’t compensable.

These journey situations are illustrative, however WHD concedes that the FLSA laws “don’t purport to handle each conceivable scenario through which an worker should journey for work.” WHD additionally notes that “[t]he FLSA shouldn’t be an rigid bar that locations employer and worker in opposition; it acknowledges that employment is a relationship that each events enter into for his or her mutual profit.” Employers with journey time circumstances that don’t match squarely throughout the situations examined within the opinion letter, or in any other case throughout the examples included within the journey time laws, ought to seek the advice of with skilled wage and hour counsel prior to creating choices or rolling out insurance policies relating to the compensability of such time. Employers should additionally think about whether or not state wage and hour legal guidelines require journey time to be paiod, even when federal regulation doesn’t.