Must I compensate my employee for that? DOL and compensation for time spent in wellness activities.

By Rudman Winchell Attorney Anne-Marie Storey

On August 28, the Department of Labor Wage and Hour Division issued Opinion Letter FLSA 2018-20, which addresses the compensability of time an employee spends voluntarily participating in certain wellness activities, biometric screenings, and benefits fairs.

The opinion letter was based on the following scenario:

An employer allows its employees to voluntarily participate in “biometric screening” both during and outside of regular work hours, which may decrease the employee’s health insurance deductibles. The screening is not required and is not related to the employee’s job; it is purely the employee’s choice whether to participate.  Employees may also participate in other “wellness activities” to potentially decrease insurance premiums, including such things as attending an in-person health education class and lecture; taking an employer-facilitated gym class or using the employer-provided gym; participating in telephonic health coaching and online health education classes through an outside vendor facilitated by the employer; participating in Weight Watchers; and voluntarily engaging in a fitness activity.

None of these activities are mandatory and do not directly relate to the employee’s job. Finally, an employee may choose to attend a benefits fair to learn about topics such as financial planning, employer-provided benefits, or college attendance opportunities. These fairs are not part of new employee orientation, are open to all employees, are not related to the employees’ job duties, and are entirely optional.

The opinion letter concluded that the described activities do not constitute compensable work time under the FLSA. The rationale for this conclusion is that the employee’s voluntary participation in these activities predominantly benefits the employee – “they provide direct financial benefit to only the employee, and they also help the employee make more informed decisions about matters unrelated to his or her job.”

The opinion noted that participation is optional for the employee and the employee is not required to perform any job-related duties during the participation. The opinion letter further indicates that the conclusion is the “same regardless of whether the activities occur on-site or during regular working hours.” Finally, the opinion concluded that the described participation constitutes noncompensable “off duty” time because the employee is relieved of all job duties during the participation. The opinion noted there was no indication that the employer restricts the amount of time an employee may participate in the activities and it assumes the time allowed is long enough for the employee to use it effectively for his or her own purposes.

A few cautions are in order before an employer relies on this opinion.

  • First, the opinion provides a reminder in a footnote that work breaks up to 20 minutes in length are ordinarily compensable, regardless of how an employee chooses to spend his or her time during the break.   So, if an employer provides all employees with a 20-minute break each day, the employer must still compensate an employee for that break if he or she chooses to spend it participating in voluntarily wellness activities.
  •  Second, these opinion letters are very fact-specific so before relying on its conclusions an employer should ensure that its wellness programs and facts regarding employee participation are comparable. Otherwise, if there are differences, that time could still be compensable.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell

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