U.S. DOL Issues Opinion Letters Regarding Compensation for Travel Time and Voluntary Training

By Michael Kernstock - Peters, Revnew, Kappenman & Anderson, P.A.

November 16, 2020

Opinion Letter FLSA 2020-16: Travel Time Compensation for Non-Exempt Foremen and Laborers
 
On November 3, 2020, the U.S. Department of Labor (“DOL”) issued Opinion Letter FLSA2020-16, regarding the compensability of travel time for hourly (non-exempt) construction foremen and laborers under the Fair Labor Standards Act (“FLSA”).  In this situation, the employer has job sites in various locations, but maintains all company vehicles at its principal place of business.
 
Generally, an employee who is required to first report to a central location or meeting place before then travelling to another job location should be compensated for the time it takes to travel to that other location. The DOL considers three commute scenarios in the opinion. The first is local job sites close to or within the same city as the employer’s principal place of business, wherein the foreman drives a company vehicle from the principal place to the job site and laborers either ride with the foreman or drive directly to the job site from their residences. The second is remote job sites, which the DOL describes as a job site between 1½ to 4 hours away from the business. Here, the employer pays for hotel accommodations and a per-diem meal stipend, foreman receive and return a company vehicle at the beginning and end of the job, and laborers drive their own vehicles to and from the remote job site (or ride with foreman) at the beginning and end of the job. The third scenario is the same as the second, except that the laborers chose to drive home instead of staying at a hotel.
 
In these scenarios, the DOL opined that the foremen’s travel time between the employer’s principal place of business and job sites is compensable, while their travel time to and from home and the employer’s place of business is not. The DOL’s opinion turns on the fact that the foremen are required to report to the central location as they need the company truck (which the inquiring company required to be secured at its place of business) to transport tools and materials around the job site—an integral part of the job.
 
Regarding the laborer’s time in these scenarios, their time is not compensable under the first scenario, as this travel constitutes normal commuting between work and home. In the second, it is compensable regardless of whether they drive or are passengers and, it does not make a difference whether the travel time cuts across their normal work hours. Passenger travel time is generally not compensable outside of the employee’s normal working hours, unless it is during normal working hours on a day the employee normally has off. In the third scenario, laborers would not be compensated for anything beyond the first and last drive to the remote job site as it is deemed time at their personal disposal.
 
However, keep in mind that these are just some examples based on the employer’s specific facts and the payment of travel time can be complex. Further, this does not contemplate any written agreements regarding travel time, a travel time policy, or a collective bargaining agreement.
 
Opinion Letter FLSA 2020-15: Employee Compensation While Attending Voluntary Training Programs
 
Also on November 3, 2020, the DOL issued opinion letter FLSA 2020-15, regarding compensation for time employees spend attending voluntary training programs, specifically outside, ongoing continuing education classes (“CEUs”). The company that requested the opinion letter is a non-profit hospice care provider with several employees that have CEU requirements related to licensing. The company’s policy required employees to substitute paid time off or vacation time when they attend voluntary training during normal working hours.
 
In the letter, the DOL explained that there are four (4) factors that must be met for employee attendance at trainings and similar activities to not count as work time. These criteria are as follows:
   a) Attendance is outside of the employee’s regular working hours;
   b) Attendance is voluntary;
   c) The course, lecture, or meeting is not directly related to the employee’s job; and
   d) The employee does not perform any productive work during such attendance.
 
There are two exceptions where training may not count as work time even though it directly relates to the employee’s job: 1) an employer-established program that corresponds to independent programs; and 2) where an employee attends an independent school, college, or trade school after hours on their own initiative.
 
The DOL then addressed six (6) detailed hypothetical situations to further clarify the opinion, largely related to on-demand viewing of webinars. Generally, viewing on-demand training (i.e., a webinar) during the workday is compensable, whereas viewing it outside of regular work hours is not. Additionally, an employee who chooses to travel to an out-of-town seminar on days they do not normally work is not required to be compensated for the training or travel time, even if some of the travel occurs on a day they normally work. Finally, the DOL reminds employers that they can establish their own work policies to dictate whether an employee must be compensated for attending trainings.