DOL Issues Four New FLSA Opinion Letters


Summer's not over yet! On August 28, 2018, the U.S. Department of Labor issued four new letters in response to requests for opinions under the Fair Labor Standards Act. In this most recent slate of letters, the DOL offers guidance on compensable time, the retail sales exemption, volunteers, and the motion picture theater exemption.

Compensable Time

In FLSA2018-20, the DOL concluded that an employer need not pay an employee for time spent voluntarily participating in certain wellness activities, biometric screenings, and benefits fairs, whether during or outside of regular working hours.

The activities at issue, which the employee could choose to participate in or not to participate in, included:

Biometric screening, which tests, among other things, cholesterol levels, blood pressure, and nicotine usage. Wellness activities, including (1) attending an in-person health education class and lecture; (2) taking an employer-facilitated gym class or using the employer-provided gym; (3) participating in telephonic health coaching and online health education classes through an outside vendor facilitated by the employer; (4) participating in Weight Watchers; and (5) voluntarily engaging in a fitness activity. Attending a benefits fair to learn about topics such as financial planning, employer-provided benefits, or college attendance opportunities. With respect to each of these activities, the DOL noted that participation is entirely optional on the employee's part (although participation in certain activities could decrease his or her insurance premiums or deductibles), the activities are not related to the employee's job duties, and the employer receives no direct financial benefit as a result of employee participation.

Citing Supreme Court and Second Circuit precedent, the DOL explained that compensability of an employee's time depends on whether the time is spent predominantly for the employer's benefit or for the employee's benefit. Because the activities at issue in the opinion letter predominantly benefit the employee, they do not constitute compensable worktime under the FLSA.

Interesting... The DOL also viewed the time spent in such activities as non-compensable "off duty" time under the FLSA regulations (29 C.F.R. § 785.16)—periods during which employees are completely relieved from duty and which are long enough to enable them to use the time effectively for their own purposes. This is notable, because under other rules governing the compensability of certain time, the mere fact that the activity occurs during regular working hours—as opposed to outside of regular working hours—is by itself sufficient to obligate the employer to pay for the time, even if attendance is purely voluntary and the activity is not job-related. See 29 C.F.R. § 785.27 (regarding attendance at lectures, meetings, training programs, and "similar activities"). By contrast, time spent in the wellness activities, biometric screenings, and...

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