This Commercial Break From COVID-Related News Is Sponsored By The Department Of Labor, Wage And Hour Division

This Commercial Break from COVID-Related News is Sponsored by the Department of Labor, Wage and Hour Division

If you are like me, COVID-19 is invading every part of your professional and personal life. You are looking for a break, a respite, a small reprieve from anything COVID. Look no further. The Department of Labor ("DOL") has voluntarily issued two opinion letters dealing with wage and hour issues relating to . . . gasp . . . not COVID-19.

Indeed, the day before THE election 2020, the Department of Labor, Wage and Hour Division ("WHD") issued important opinion letters addressing: (1) the compensability of time employees spend to maintain their professional licenses for work (think continuing education for a nurse who works for a non-profit social services organization); and (2) travel time to and from work locations. The glue that binds these things together is an important one—regulators to litigators continue to watch, analyze and enforce pay practices.

To level set, an opinion letter is an official, written opinion by the DOL on how a law or regulation applies in specific circumstances. Practically, opinion letters carry weight because they are clear, written pronouncements on how the DOL views a practice in a snapshot of time. To that end, an employer can request an opinion letter on a unique or undecided wage and hour issue.

Is Voluntary Training Compensable?It depends.

First, the WHD tackled the compensability of time incurred by non-exempt employees for continuing education, voluntarily funded by an employer.(FLSA2020-15).The employees do not have to use the funds, do not have to attend any specific continuing education classes, do not incur any penalties for failing to attend and do not perform any productive/substantive work for the employer as part of the training.

Under theFLSA regulations, employers must pay employees for time spent in training, educational and similar programs unless all of the following four criteria are met:(1) attendance is outside the employee's regular working hours; (2) attendance is voluntary; (3) the training or education is not related to the employee's job; and (4) the employee does not perform any productive work during such attendance. The third requirement has an important exception—the"special situations" exception—whereby time spent by employees outside of working hours voluntarily attending courses established by their employer for the benefit of employees is not considered hours worked even if the courses are directly related to their jobs (29 C.F.R. §785.31).

Against this backdrop, the WHD analyzed six different fact patterns and determined that three are compensable, two are not and one is undetermined based on the facts presented. The following three scenarios are compensable, because they occur during working hours:

1. An on-demand webinar directly related to an employee's job, which does not count toward the employee's continuing education requirements, viewed during working hours;
2. An on-demand webinar not directly related to an employee's job, which does not count toward the clerk's continuing education requirements, viewed during working hours; and
3. An on-demand webinar not directly related to an employee's job, which counts toward the employee's professional licensing requirements for continuing education, viewed during working hours.

Two training scenarios are not compensable under the "special situations" doctrine:

1. An on-demand webinar directly related to the employee's job, which counts toward the employee's professional licensing requirements for continuing education, viewed after working hours; and
2. An on-demand webinar directly related to the employee's job, which counts toward the employee's professional licensing requirements for continuing education viewed after working hours.

Lastly, the remaining open issue is whether an on-demand webinardirectly relatedto the employee's job, which doesnotcount toward the employee's continuing education requirements, viewedafterworking hours is compensable. The WHD did not opine on this issue, stating there was insufficient information. Thus, a prudent approach is for employers to avoid this final situation based on the certainty provided under the other five scenarios.

Is Travel Time Compensable? It, too, depends.

Next, the WHD provided clarity surrounding travel time for employees who travel to job sites at various locations. Generally, an employee's regular commute from home to work at the beginning of the workday, or from work to home at the end of the workday, is not compensable regardless of whether the employee works at a fixed location or at different job sites. Two important rules further refine this general rule. First, under the "all in a day's work" regulation, travel time from the first location—for example, an employee is required to report to one work location to pick up tools or materials—to another work location that same day is compensable. (29 C.F. R. 785.38). Second, travel time is compensable if it is part of a "continuous workday"—that is, if it occurs after the employee begins the first principal activity on a workday and before the employee ceases the performance of the last principal activity on a workday. (29 C.F.R. 790.6(a)). Bona fide meal periods and off-duty time are exceptions to the "continuous workday" and are not compensable. (29 C.F.R. 785.19; 29 C.F.R. 785.16). Further, when work travel requires an overnight stay away from the employee's home, travel time during the employee's normal working hours is compensable, whereas travel time outside of the employee's normal working day is not compensable, regardless if it occurs on a work or non-workday. Using this framework, the WHD looked at three different scenarios:

1. The job site is close to or within the same city as the company's headquarters;
2. The job site is between 90 minutes and four hours' travel time from the company's headquarters, and the company pays for hotel accommodations near the job site during the duration of the work travel, and the employee elects to stay in the hotel; and
3. Under the same facts as (2) above, except the employee chooses to travel back and forth between their home and the job site daily.

Under the first scenario, the time is not compensable. Under the second scenario, time spent traveling from the hotel to the job site is not compensable. Time spent by employees driving their personal vehicles or in a coworker's personal vehicle to the job site at the beginning of the job and to their homes at the end of the job is compensable if during the employee's normal work hours, regardless of whether it is a non-work or work day. If, however, the employer offers transportation via a company vehicle, the company may choose to count as hours worked either: (a) the time that accrues during a trip in the company vehicle leaving from the company, or (b) the time the employee actually takes to travel to the remote worksite. Practically, the employer can choose to compensate the traveling worker for the lesser of the two options. Under the final scenario, the drive to the job site at the beginning of the job and the final drive home at the end of the job is treated the same as scenario 2 above. However, the employee's drive to and from the worksite each day is considered part of the normal commute and is not compensable. Although COVID-19 currently monopolizes human resources' time and efforts, wage and hour issues are ever lurking. Moreover, wage and hour issues are one of the trickiest employment compliance issues, and thus a ripe issue for litigation. If in doubt or you have any questions about these opinion letters or other wage and hour issues, please contact Catherine Strauss or any member of Ice Miller's Labor and Employment team.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.