Department of Labor Issues Two Wage and Hour Letters

On November 3^rd, 2020, the Department of Labor (DOL) released two opinion letters addressing Fair Labor Standards Act (FLSA) compliance. Opinion letters are official written opinions released by the DOL’s Wage and Hour Division (WHD). The letters contain the WHD’s opinion on how the law applies in circumstances presented by the entity sending the request.

Opinion Letter on Voluntary Training Time

In FLSA2020-15, the WHD examined a hospice care provider that provides funds to non-exempt employees for continuing education. The employees do not have to use the funds, or attend any particular continuing education classes. The continuing education is entirely voluntary, and the employees gain no work-related benefit from attending. They also do not incur penalties for not attending. According to FLSA regulations, employees must receive pay for time spent in training, educational, and similar programs. They do not have to receive pay, however, unless they meet all of the following circumstances:

• Attendance is outside the employee’s regular working hours;
• Attendance is voluntary;
• The training, education, etc. is not related to the employee’s job; and
• The employee does not perform any productive work during such attendance.

The opinion letter examines six scenarios of employee training examples. Each scenario has its own answer as to whether or not employees should receive compensation.

Opinion Letter on Travel Time

In FLSA2020-16, the WHD examined a construction company whose non-exempt foremen and laborers work at job sites in various locations. The foremen’s tasks during the day include:

• travelling to the company’s headquarters at the beginning of a job or work day to retrieve a company truck;
• driving the truck to a job site, where the truck transports tools and materials; and
• returning the truck to the company’s headquarters at the end of the job or work day.

Laborers have the choice of driving directly to the job site or riding with a foreman there from company headquarters. Under FLSA regulations, an employee’s regular commute from home to work, or from work to home is not compensable.  This is true whether the employee works at a fixed location or at different job sites. However, when an employee reports to one work location and then travels to another, that is compensable. In the opinion letter, the WHD examines three scenarios of various situations for both foremen and laborers. In those different situations, the agency examines when the two groups would and would not get paid for travel time.

Employer Takeaways

It is extremely important that all employers are following wage and hour regulations under the FLSA. Including these two new releases, the WHD has issued 67 opinion letters since January 20^th, 2017. Employers can search the DOL’s website for existing opinion letters by keyword, year, topic, and other filters. The DOL also encourages the public to submit requests for letters to the WHD to obtain an opinion. The WHD can also determine whether guidance already exists in addressing the questions received. The agency will exercise discretion in determining whether and how it will respond to each request.