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DOL’s New Opinion Letters Examine Rules on Voluntary Training Time & Travel Time

On November 3, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued new opinion letters addressing the compensability of time spent by non-exempt employees attending voluntary training programs and in work-related travel.

Voluntary Training Time

Under the FLSA 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, education, etc. is not related to the employee’s job; and
  4. The employee does not perform any productive work during such attendance.

In opinion letter FLSA2020-15, WHD looked at six different scenarios, in each of which it was assumed that employee attendance was voluntary and that the employees did not perform any productive work to determine whether the time was considered hours worked.

The FLSA acknowledges two exceptions when training that directly relates to an employee’s job may be excluded from “hours worked”:

  1. When employees, who decide on their own initiative, attend an independent school, including college or trade school, after work hours; or
  2. When employees attend training outside of work hours that is provided and paid for by their employer for the employees’ benefit and that corresponds to courses offered by independent educational institutions.

Travel Time

Under FLSA regulations, an employee’s regular commute from home to work at the beginning of the work day, or from work to home at the end of the work day, is not compensable. This is true whether the employee works at a fixed location or at different job sites. However, when an employee is required to report to one work location (e.g., to retrieve instructions, to pick up tools or materials, or otherwise to perform work) and then to travel to another work location that same day, the travel time from the first work location to the next is considered “all in the day’s work” and is compensable. In addition, travel time is compensable if it is part of a “continuous workday” (which 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).

In opinion letter FLSA2020-16, WHD considered three different scenarios to determine if travel time was considered hours worked for a foreman traveling between job sites:

  • Scenario 1: The job site is close to or within the same city as the company’s headquarters.
  • Scenario 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 job.  The laborers stay in the hotel during the duration of the job.
  • Scenario 3: Same facts as Scenario 2, but the laborers choose to travel between the job site and their homes each day rather than stay at the hotel.

In each of the three scenarios, the foremen’s travel time between the company’s headquarters (where they retrieve the company truck) and the job site is compensable.  The retrieval of the truck is integral and indispensable to the principal activities the foremen are employed to perform, and the travel time falls within the “all in the day’s work” regulation.

Next Steps for Employers

Employers should review the opinion letters to determine whether they may have any applicability to their business operations. However, employers should be mindful that FLSA regulations and WHD issued opinion letters do not address every conceivable situation in which an employee must be paid for training and/or travel time. Employers with training or travel time circumstances that do not fit squarely within the scenarios examined in the opinion letters, or otherwise within the examples included in the travel time regulations, should consult with legal counsel prior to making decisions or implementing policies regarding the compensability of such time. Employers must also consider whether state wage and hour laws require training time and/or travel time to be paid, even if federal law does not.

HR Works, Inc., headquartered at 200 WillowBrook Office Park in Fairport (Rochester), New York, with an office in East Syracuse, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.