As we reported earlier, after a hiatus during the Obama Administration, opinion letters are back and the United States Department of Labor (DOL) recently issued six new ones.

Quick Refresher

Opinion letters are official, written opinions from the Wage and Hour Division (WHD) on “how a particular law applies in specific circumstances presented by the person or entity requesting the letter.” The DOL encourages the public to submit requests for opinion letters; however, the request must state that the opinion is not sought by a party in a WHD investigation or for use in any litigation that was initiated prior to the submission of the request.

The Facts about Paying for Wellness

Be Well without Running Afoul of the FLSAOne of the newly issued opinion letters addresses whether the FLSA requires an employer to compensate an employee for time spent voluntarily participating in certain wellness activities, biometric screenings, and benefits fairs. The fact pattern presented to the DOL was as follows:

An employer makes available to its employees opportunities to participate in “biometric screenings,” which test, among other things, cholesterol levels, blood pressure, and nicotine usage. The employer does not require the screening, and it is entirely the employee’s choice to participate. The screenings are in no way related to the employee’s job duties; however, the employee may be screened both during and outside of regular work hours. An employee’s participation in the screening could decrease the employee’s health insurance deductibles.

An employee may also participate in other “wellness activities” to decrease his or her monthly insurance premiums, including (1) attending in-person health education classes; (2) using the employer-provided gym; (3) participating in telephonic and online health education classes facilitated by the employer; (4) participating in Weight Watchers; and (5) voluntarily engaging in a fitness activity. As with the biometric screening, the employer does not require anyone to engage in those wellness activities, and the activities are not related to the employee’s job.

Lastly, the employer allows employees to attend benefits fairs on such topics as financial planning, employer-provided benefits, or college attendance opportunities. Those fairs are not part of an employee’s orientation, are open to all employees, are not related to the employee’s job duties, and are entirely optional.

The DOL’s Opinion

The FLSA requires employers to compensate employees for their work, but does not explicitly define “compensable work.” That said, in reaching its ultimate conclusion, the DOL relies on the U.S. Supreme Court’s 1944 determination in Armour & Co. v. Wantock that the compensability of an employee’s time depends on “whether it is spent predominantly for the employer’s benefit or for the employee’s.” The DOL also relies upon separate regulations relieving employers of their obligation to compensate an employee for “off duty” time, i.e., “periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes.”

Considering all of those factors, the DOL opined that “an employee’s voluntary participation in biometric screenings, wellness activities, and benefits fairs predominantly benefits the employee.” It reached that conclusion, in part, because the activities (1) provide financial benefit to only the employee, (2) help the employee make decisions about matters unrelated to his or her job; (3) are wholly optional; and (4) are not required in conjunction with any job-related duty. As such, the DOL concluded that engaging in those activities does not constitute compensable worktime under the FLSA.

The DOL specifically concluded that participation in those activities was not compensable even during normal work hours, because the activities constitute non-compensable “off duty” time, provided the employee may use the time engaging in those activities “effectively for his or her own purposes.”

Takeaway

Employer wellness programs are all the rage. The DOL’s recent opinion offers clear guidance to employers on how to structure a wellness program in a manner that does not require the employer to pay employees for using the program:

  • Make available financial benefits personal to the employee (not to the company);
  • Provide information that employees need to make decisions related to their lives—not their jobs; and
  • Make it voluntary.

When everyone’s phone issues that loooong beep indicating a hazardous weather warning or when you see Jim Cantore in your local airport, you know that weather is possibly going to affect your workplace. With Gordon making landfall and other storms on the horizon, we are re-posting this past group of tips on how to deal with extreme weather.  We hope everyone stays safe.

Hurricanes, Blizzards, and That Dreaded TORCON Index

Riding the Storm Out—A Reminder on Employer Issues During Bad WeatherMany “it was the worst day of my life” stories begin with a weather event. I will never forget sitting with a client in an early April morning mediation in 2011 when she received a call on her cell phone. She was told that she should not come to work that day. And that the company’s entire fleet of service trucks had just been wiped out. It was a very bad tornado day for her and all of Alabama. Now, in the middle of one of the worst hurricane seasons in recorded history, we have been receiving questions across our offices about how to handle pay for company closings, late openings, and “y’all go home” announcements. Here are some things to consider:

Hourly Employees

Pay for hourly employees during weather disasters is fairly simple. Hourly employees must be paid for all hours actually worked. If employees do not come in, are turned away at the door, or are sent home early, the rule is the same – pay hourly employees for hours actually worked.

In this age of remote login, PDAs, and perhaps just running business-related errands while the office is closed, however, employers must beware. Hourly employees must be paid for all time actually worked. This includes time working away from the company’s time clock or login procedure.

Employers are not required to pay “show-up” pay under most state laws. These include the southern states. Some northeastern and western states do have show-up pay requirements contained in their state laws. If your business is operating there, you should check state laws for those requirements and any exceptions to them, such as one that results from timely and effective notice of a closing by the company.

Salaried Employees

Salaried employees, to retain their overtime exemption, must be paid their full salary in any week in which they perform any work. Thus, a closure for that approaching storm front will not allow an employer to deduct any percentage of a salaried employee’s pay for the hours not worked.

There basically are three exceptions for inclement weather to this rule for salaried employees. First, if the employee has a paid-time-off (PTO) plan, the employer may require the employee to use some of his or her PTO time for a weather-related closure. In this instance, the salaried employee obviously continues to receive full pay (but some of it comes from the PTO bank). The second exception is that an employee need not be paid his or her salary in any work week in which no work is performed. This exception would apply to the more severe Katrina-like disasters. So, if the office is closed the entire week, you do not have to pay even your exempt employees who performed no work. Finally, employers may deduct for full-day absences, but only full-day absences, if the business is open and the employee is unable to get to work due to the weather (this would be like an unpaid personal day for something other than sickness or disability).

Contractual Pay

In addition to considering federal and state wage and hour laws, do not forget about contractual requirements that could impose greater obligations on the company than do these laws. Individual employment contracts could contain such provisions, as could collective bargaining agreements (CBAs) in union settings. CBAs, for example, often contain show-up pay provisions and have restrictions on mandatory use of PTO.

Working from Home

As mentioned above, all employees, hourly and salaried, must be paid for all time worked. This includes time worked from home or any other “offsite” location. Employees with PDAs (and old-fashioned toolboxes) must be monitored for actual work performed when the employer’s business otherwise is closed.

What to Do with the Superstar Who Came In Everyday

Bonuses are allowed but not required. Gift cards and spa treatments are great alternatives. Just remember, though, that for the purpose of calculating overtime pay in a given workweek, all remuneration must be included in the base rate before multiplying that rate by time and a half for hours worked over 40.

Take care.

This article was originally published on the Labor & Employment Insights blog on March 12, 2015.

Yes to Getting Paid for Getting Dressed? Doesn’t Meet the Test, Says 11th CircuitWhen do you have to pay an employee before a shift? In Llorca v. Sheriff (Collier County, Florida), the Eleventh Circuit waded into the rich history of what types of pre-shift activities might qualify for hourly compensation. As we have written about before, the primary legislation dealing with dressing for and driving to and from work is the Portal-to-Portal Act of 1947, as amended by the Employee Commuting Flexibility Act of 1996. That act states that an employer is not on the hook to pay its employees for time travelling to and from work (a regular commute) or for activities that are “preliminary to or postliminary to” the “principal activity” of the job. The U.S. Supreme Court established a test that preliminary or postliminary work could only be compensable if it was an “integral and indispensable part of the principal activities.” Easy, right?

The Facts

Mr. Llorca and his cohorts were deputy sheriffs in Collier County, Florida, and were required to show up for work wearing their uniforms and certain protective gear. They were allowed to put on this equipment and clothing at home—and they did that. The deputies also commuted to and from work in marked patrol cars. During that commute, they were required to have their radios on and to respond to any emergencies if they heard them. The county did not pay the deputies for the time spent donning the protective equipment and uniform or for any time just riding to and from work—although they were paid if they had to respond to an emergency. Plaintiffs filed suit under the FLSA for that uncompensated time. The lower court dismissed their case, and they appealed.

Where and How You Get Dressed May Matter

The Eleventh Circuit opinion addressed the donning protective equipment and commuting claims separately. On the dressing claim, the court looked at whether putting on the protective equipment was both integral and indispensable to the deputies’ primary job of law enforcement. The opinion notes that this inquiry is “fact-intensive and not amenable to bright-line rules.” The court found that donning and doffing the uniform and protective equipment was an entirely separate activity from the deputies’ principal law enforcement duties—enforcing traffic laws, responding to emergencies and engaging in crime protection—so not compensable. The court also relied on DOL regulations that held that changing clothes normally is among the preliminary and postliminary activities that are non-compensable.

The court also found it significant that the deputies were allowed to dress at home. The DOL has found that changing clothes at home is not compensable and the court compared the situation to a chemical plant employee who has  to don specific chemical exposure suits while at the plant. That type of changing activity would be considered both integral and indispensable to the job and therefore recoverable. In this case, the Eleventh Circuit denied the wage claim.

Riding to and from Work

With regard to the commuting time claim, the court stated that this type of travel is exactly what the Portal-to-Portal Act attempted to exempt from the wage requirements of the FLSA—even if you are in a company vehicle. The fact that the officers might also have to be responsive to possible emergencies did not trouble the Eleventh Circuit in finding that it was not compensable time. Again, a DOL regulation also provided the court with support by holding that a police officer who is off duty, but has to have the radio on for emergency calls, is not working during the travel time. Other circuits had agreed on this point and the court noted those cases in denying the claim.

Is Dressing and Driving Always Non-Compensable?

As the court explicitly stated, these types of claims are decided on a case-by-case basis and are very fact driven. However, there are some good tips we can take from this case.

  • If an employee is able to dress at home, that is most likely not going to be a compensable activity. However, if there are pre-or post-shift activities that have to occur on site–specific location-based protective equipment, showering due to workplace exposures, etc.–that might be compensable.
  • Just because an employee drives a company vehicle doesn’t make the time compensable. But if you require someone to check the mail on the way into work or deliver a bank deposit on the way home that may turn part of the ride into a compensable event.

Again, the best bet is to have discussions with your employees about their work requirements and set expectations for how you plan to pay them.