“Off Duty” Time Spent on Voluntary Wellness-Related Activities is Non-Compensable

September 26, 2018


Last month, the Trump Administration continued to reaffirm its pro-business regulatory stance with the issuance of four new Department of Labor (“DOL”) opinion letters interpreting various aspects of the Fair Labor Standards Act (“FLSA”). In one of these opinion letters, the DOL addressed whether the FLSA requires compensation for the time employees spend voluntarily participating in certain wellness activities, biometric screenings, and benefits fairs. The employer allowed its employees, both during and outside of regular working hours, to voluntarily participate in various activities, including:

  • Biometric screenings, which tested the employee’s 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 (e.g., going to personal gym, exercising outdoors, participating in a Fitbit challenge); and

  • Benefits fairs, which informed employees about financial planning, employer-provided benefits, and college attendance opportunities.

These activities were in no way related to the employees’ job functions or duties. However, by participating in these activities, the employees were able to decrease their health insurance deductibles. The employer did not pay employees for the time spent engaging in these activities and claimed it did not receive any direct financial benefit as a result of the employee participation.

The DOL first noted that whether the time is compensable hinges on whether it is “predominantly for the employer’s benefit or for the employee’s.” An employee is considered to be “off duty” during periods when he or she “is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes.”

In concluding that the time spent participating in these activities was non-compensable, the DOL determined that these voluntary wellness-related activities predominantly benefited the employees because the employee received a direct financial benefit (i.e., reduced health insurance deductibles) and allowed the employee to make more informed decisions about matters unrelated to their job-related duties. The DOL also found that the time qualified as “off duty” and was being used by employees for their own purposes—an interesting determination, given that some of these wellness-related activities occurred during regular working hours. That is, under other rules governing the compensability of time (e.g., attendance at lectures, meetings, and training programs), the fact that the activity occurs during regular working hours is sufficient to qualify such time as compensable. In this case, however, the DOL found that the time the employees spent at these activities was not “work” under the FLSA and was non-compensable, “off duty” time.

Notably, the opinion letter did not address what indirect benefit, if any, the employer may have received from the employees’ participation in these activities and did not define when the reduction in health insurance premiums made the employees’ participation in such activities less “voluntary.” Finally, the DOL highlighted that under 29 C.F.R. § 785.18—which states that work breaks up to 20 minutes are ordinarily compensable, regardless of how an employee chooses to spend his or her time during the break—the employer would still be obligated to compensate employees for 20-minute breaks, even if the employee chooses to spend it participating in the wellness activities, biometric screenings, and benefit fairs.

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