WHD opinion letters discuss compensation for voluntary training, travel to worksites
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Wednesday, November 11, 2020

WHD opinion letters discuss compensation for voluntary training, travel to worksites

By Payroll and Entitlements Editorial Staff

On November 3, the Department of Labor released two FLSA opinion letters, one that addresses compensability of time spent in voluntary training programs and the other, employee travel time when work sites are located away from an employer’s primary place of business.

Compensation for voluntary training. In FLSA2020-15, the Wage and Hour Division addresses the compensability of time that employees spend attending voluntary training programs in six different scenarios. In each scenario, the employee participation in the training program is voluntary; the employee does not perform any productive work during the training.

Training for CEU requirements. Here, a non-profit hospice care provider employs a variety of clinical staff who have ongoing continuing education (CEU) requirements mandated by their respective professions’ licensing requirements, and a certain number of non-clinical support staff who do not have ongoing continuing education requirements. The company provides funds to each full and part-time employee for continuing education in an amount determined by status (full or part-time) and position (leadership, provider, and all other staff), and the amount is the same for all employees sharing the same status and position. Employees do not have to use the CEU funds or attend any particular continuing education class; attendance is entirely voluntary. Further, employees gain no work-related benefit from attending a continuing education class, nor do they incur any penalty for failing to do so.

The company counts as work time any training that it mandates or requires an employee to attend. When it comes to voluntary continuing education training, however, it requires employees to substitute paid time off or vacation time when an employee chooses to attend such training during normal working hours. If the training occurs after hours, no compensation is provided. Employee CEU funding requests are "often, but not always" motivated by a desire to maintain a professional license, where the requested training may or may not directly relate to an employee’s job. In other instances, the request might be for training that directly relates to the employee’s work but has the added benefit of fulfilling a CEU requirement.

Six training scenarios. The opinion addresses the following six scenarios and provides detailed analyses for each that are only very briefly stated here:

  • Nurse W submits a request, which is approved, to use her education funds for an on-demand webinar directly related to her job and also has CEUs that can go towards her licensing [continuing education] requirement. Although she could view it anytime, she decides to do so on her off-work time. Is it permissible to treat this as unpaid time?

Yes, because although the webinar is directly related to the nurse’s job, this scenario appears to be a "special situation" that need not be counted as compensable working time under 29 C.F.R. § 785.31.

  • Accounting Clerk L submits a request, which is approved, to use his education funds for an on-demand webinar directly related to his job but has no [continuing education] component. Although he could view it any time, he decides to do so on his off-work time. Is it permissible to treat this as unpaid time?

The information provided is insufficient to determine whether the clerk’s time viewing the webinar qualifies as working time for FLSA purposes.

  • Accounting Clerk M submits a request, which is approved, to use his education funds for an on-demand webinar directly related to his job but has no continuing education component. Although he could view it any time, he does so during his work hours. Is it permissible to require him to substitute [paid time off] for the time spent watching the webinar?

Employee participation during regular work hours in a training program that directly relates to the employee’s job is work time for FLSA purposes.

  • Accounting Clerk O submits a request, which is approved, to use his education funds for an on-demand webinar that is not directly related to his job and has no [continuing education] component. Although he could view it any time, he does so during his work hours. Is it permissible to require him to substitute [paid time off] for the time spent watching the webinar?

Even though the webinar is not directly related to the clerk’s job, the viewing time would qualify as work time for FLSA purposes because the clerk views the webinar during his regular work hours.

  • Nurse X submits a request, which is approved, to use her education funds for an on-demand webinar that isn’t directly related to her job but has CEUs that can go towards her licensing [continuing education] requirement. Although she could view it any time, she chooses to do so during her regular work hours. Is it permissible to require her to substitute [paid time off] for the time spent watching the webinar?

The nurse’s viewing time would qualify as work time for FLSA purposes because the nurse views the webinar during her regular work hours.

  • Nurse Y submits a request, which is approved, to use her education funds for an in-person, weekend conference that covers several topics, some of which directly relate to her job, but others don’t. CEUs are available. She has to travel out of town to attend. Both the travel and the conference cut across her normal work hours, but the actual conference occurs on days she doesn’t normally work. Does she have to be paid? If so, can we require her to substitute [paid time off] for the time spent traveling and attending?

The nurse described in this scenario does not have to be compensated for any of her travel or training time, provided that her participation in the training is voluntary and she does not perform any productive work during the trip.

Compensation for travel time. In FLSA2020-16, the WHD discusses compensability of travel time for nonexempt foremen and laborers in three different scenarios involving construction sites located away from the employer’s principal place of business. For safety and security reasons, the company keeps its trucks at its principal place of business. In each scenario, foremen are required to travel to the employer’s place of business 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 the employer’s place of business to secure it.

Three travel scenarios. The opinion letter discusses the compensation issues related to three different scenarios—the WHD’s response is briefly stated below for each:

  1. Local job sites. The job site is local; that is, close to or within the same city as the employer’s principal place of business. Each foreman retrieves a company truck in the morning from the employer’s principal place of business, drives it to the job site, and returns it at the end of the day. Laborers may choose to "drive directly to the job site" or "drive to the principal place of business and then ride to the job site with the foremen."
  2. Remote job sites. The job site is between one-and-one-half and four hours’ travel time from the employer’s principal place of business. The employer pays for hotel accommodations for all employees who work at the job site and pays to those employees a per-diem meal stipend. Each foreman retrieves a company truck from the employer’s principal place of business at the beginning of the job, drives it to the job site, and returns it at the end of the job. Laborers "are to drive their personal vehicles" to and from the remote job site at the beginning and end of the job, but some "want to drive their personal vehicles to the employer’s principal place of business and ride to and from the job site with the foremen."
  3. Employees commute to remote job site. The facts are the same as in Scenario 2, but the laborers choose to travel between the remote job site and their homes each day rather than stay at the hotel.

Foremen. The WHD found that the foremen’s travel time between the employer’s principal place of business and the job sites is compensable in each scenario.

Laborers. As to Scenario 1, laborers’ travel time to and from a local job site is normal commuting between home and work, which is not compensable. Their choice to meet at the employer’s place of business and from there ride with the foreman in the company truck as part of their travel does not transform their commute into compensable work time.

In Scenario 2, the laborers are away from home overnight. Their travel from their hotel to the job site is normal "home" to work travel, which is not compensable. The laborers’ travel to and from the remote location at the beginning and end of the job, on the other hand, may or may not be compensable:

  • Where laborers "are to drive their personal vehicles" to the remote job site at the beginning of the job and home at the end of the job. Where the actual requirement is that laborers be at the job site to perform their duties and that "drive their personal vehicles" is a description of how the laborers get to the remote job site rather than a command that they travel in a particular way, where their travel cuts across their normal work hours, even if they are traveling on what would otherwise be a nonwork day, the laborers’ time is compensable.
  • Whether a passenger’s travel time is compensable depends on when the laborer travels. If the laborers are traveling to the remote job site as passengers outside of their normal working hours, the WHD would not consider their time to be compensable. If the laborers are traveling to the remote job site during their normal working hours, even if not on normal workdays, their time would be compensable.

In Scenario 3, laborers choose to drive between the remote job site and their homes each day. Here, the laborers’ travel to and from the job site at the beginning and end of the job would be treated as in Scenario Two. But the laborers’ intervening drives home and back to the remote job site would not be compensable.

The DOL noted that with today’s release, the WHD has now issued 67 opinion letters since January 20, 2017.

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