DOL Issues Opinion Letters on Attending Educational Programs and Traveling to Remote Work Sites

By Christopher T. Vrountas, Esq. and Adam J. Chandler, Esquire, Vrountas, Ayer &
Chandler, P.C.

​While much of the country was heading to the polls on November 3, the United States Department of Labor issued two new Opinion Letters.  In these letters, the DOL provides opinions on when employee time traveling to remote work sites and at voluntary training programs is compensable under the Fair Labor Standards Act.

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The Compensability of Voluntary Educational Programs Depends Largely on When an Employee Attends the Program
 
In Opinion Letter FLSA2020-15, the DOL responded to an inquiry from a healthcare provider whose clinical staff have ongoing continuing education requirements mandated by the employees' professional licensing requirements.  The employer also has a number of non-clinical staff who do not have such requirements, but might still engage in educational programing for a variety of reasons.  The employer provides funds for employees to attend these programs, attendance is entirely voluntary, and there is no benefit or penalty for attending the programs.
 
Whenever the employer mandates training, it counts such training as work time, and pays the employees at their normal rates.  If an employee attends a voluntary educational program during work hours, he or she is required to use PTO to cover the time.  The employer represented to the DOL that attendance at voluntary educational programs is often, but not always, motivated by a desire to maintain a professional license, and is sometimes directly related to the employees work.
 
The DOL then recited the general standards for determining whether attendance at educational programing is compensable work time, before providing its opinion on different scenarios provided by the employer.  Under FLSA regulations, attendance at lectures, meetings, and training programs generally need not be counted as work time if all for of the following criteria are met:

1. Attendance is outside the employee's regular working hours;
2. Attendance is in fact voluntary;
3. The course, lecture, or meeting is not directly related to the employee's job; and
4. The employee does not perform any productive work during such attendance.

In addition to this general rule, there are "special situations" where training time may be excluded from a employee's work time even though it relates to the employee's job.  One such situation exists where the employer establishes for the benefit of its employees a program of instruction that corresponds to courses offered by independent bona fide institutions of learning.  Voluntary attendance at such a program outside of working hours does not count as hours worked even if the program is directly related to the job.  Another exception exists where an employee, of his or her own initiative attends an independent program outside of work hours, even if the courses directly relate to the job.
 
With these principles in mind, the DOL analyzed the following six scenarios:

1. A nurse attends a webinar outside work hours that provides continuing education credits and relates to the job.  The DOL opined that the time spent at this webinar could be unpaid because it was outside of work hours and satisfied the first "special situation" above. Because the program satisfied licensing requirements for the nurse, the DOL determined that it likely corresponded to a course offered by an independent bona fide institution of learning.
2. An accounting clerk attends a webinar outside work hours that DOES NOT provide continuing education credits and relates to the job.  The DOL could not provide an opinion on this scenario, because, unlike Scenario 1, there was no basis to conclude that it corresponded to a course offered by an independent bona fide institution of learning.
3. An accounting clerk attends a webinar DURING work hours that does not provide continuing education credits and relates to the job.  Because the webinar related to the employee's job and was attended during work hours, the time was compensable.  The DOL's solution, if the employer did not want to pay for such time, was to institute a policy requiring that such educational programs be attended outside work hours.
4. An accounting clerk attends a webinar during work hours that does not provide continuing education credits and DOES NOT relate to the job.  Even though the webinar did not directly relate to the employee's job, because it was during work hours, the time was compensable.
5. A nurse attends a webinar DURING work hours that provides continuing education credits and DOES NOT directly relate to the job.  Because the webinar is during work hours, the time is compensable.
6. A nurse attends a weekend educational conference which provides continuing education credits, and some of which directly relates to her job; travel and non-educational portions of the conference occur during normal work hours.  Time spent at the conference is not compensable, assuming it was truly voluntary and no actual work was performed, because it was outside of work hours and appears to correspond to courses offered by a bona fide institution of learning.  Travel time would also be excludable, even though during the employee's normal workday, because it would be considered personal travel time for the employee's own convenience.

Based on the above analysis by the DOL, it appears that the dominant factor in determining whether hourly employees must be paid for voluntary training time is when the training takes place.  If it takes place during the normal workday, it will surely be compensable.  If an employee attends a training program outside normal working hours, it may still be compensable time if the program directly relates to the employee's job and the program is not considered comparable to a course offered by an independent bona fide institution of learning.
 
Travel to Remote Work Sites is Compensable in a Number of Situations
 
In Opinion Letter FLSA2020-16, the DOL responded to an inquiry from a construction company that sends foremen and laborers to remote job sites under different scenarios.  In all cases, the foremen are required to drive a company truck from the employer's place of business to the job site to transport tools and materials around the site and return the truck to the employer's place of business to secure it.
 
There were three different scenarios presented by the employer.

1. There are local sites where the foreman picks up the truck in the morning, drives to the site, and returns it at night.  Laborers can choose to either drive directly to the site or drive the employer's place of business in the morning and ride with the foreman.
2. There are remote sites between 1.5 and 4 hours away.  The employer pays for hotel accommodations and a per diem.  The foremen pick up a truck at the beginning of the job, drive it to the site, and return it at the end of the job.  Laborers can choose to either drive their personal vehicle to the site or ride with the foreman.
3. In some cases with remote sites, the laborers choose to travel between the remote site and home each day rather than stay in a hotel.

The DOL applied the Portal-to-Portal Act to the employer's questions about the compensability of travel time.  Under the Portal-to-Portal Act, travel to and from home or a place of lodging at either end of the workday is ordinary home to work travel that is incidental to employment and not compensable.
 
Travel to a designated place of work, however, must be counted as hours worked where an employee is first required to report to a meeting place to receive instructions or perform other work there, or to pick up and carry tools.  In order to meet this test, however, the activity for the employer must be both an intrinsic element of the employee's principal activities and one that the employee cannot dispense with if he is to perform his principal duties.
 
Under DOL regulations, travel to another city on a special one-day assignment is compensable worktime from which the employer may deduct the time that an employee would travel to his or her normal work site.  Travel that keeps an employee away from home overnight is travel away from home.  Whether travel is compensable depends on when and how the employee travels.  Travel away from home during normal work hours, even on a nonwork day, is compensable.  The DOL, however, does not consider travel away from home outside of regular work hours to be compensable.  If the employer offers a public transportation option, the employer can determine compensable time as if public transportation was used, even if the employee decides to drive.
 
Applying these standards to the above scenarios, the DOL determined that, in each scenario, the foreman's time driving a truck to or from the employer's place of business to or from the job site was compensable.  This opinion resulted from the fact that the trucks were necessary to transport tools and materials around large job sites and had to be returned to the place of business to be secured after use at the job sites.  For these reasons, the DOL determined that retrieving the trucks, driving them to the sites, and returning them were integral and indispensable to the duties the foremen were hired to perform.
 
The issues presented by the laborers were more complex.  For local job sites, because they had the option to drive directly to the sites or ride with the foremen, this time was not compensable.  For remote job sites, travel to and from the hotel was similarly not compensable.  Travel from home to the remote site at the beginning and end of the job, however, may be compensable, depending on a number of factors.  If the laborer drives to the site, and the travel cuts across normal work hours, even if not on normal work days, the time is compensable.  Similarly, if the laborer rides to the site as a passenger, the time is compensable if travel occurs during normal work hours, even if not on a normal work day.  Although the regulations only speak to a public transportation alternative, the DOL's opinion would allow an employer to provide its own transportation to employees (in this case, the foreman's truck), and count that time as compensable time, rather than the employee's own drive time.  Finally, when an employee decides to return home every night from a remote work site, only the first drive to the work site and the last return home at the end of the job are potentially compensable, as it was the employee's sole decision to return home every night for his or her own, personal reasons.