The Higher Ed Workplace Blog

DOL Issues Opinion Letter on Wellness Activities

On August 28, the Department of Labor (DOL)’s Wage and Hour Division (WHD) issued six new opinion letters to address compliance issues under both the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). As WHD states, “an opinion letter is an official, written opinion by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter.”

The August announcement builds upon DOL’s June 2017 statement that it would reinstate the issuance of opinion letters — a longstanding practice of DOL before it was eliminated during the Obama administration and replaced with broader “Administrator Interpretations”— and the January 2018 reissuance of 17 opinion letters drafted at the end of the Bush administration yet withdrawn by the Obama administration before they could be mailed.

While the recent batch of newly released opinion letters address a variety of issues, one of the letters answers an individual’s request for WHD to opine on whether the FLSA “requires compensation for the time an employee spends voluntarily participating in certain wellness activities, biometric screenings and benefits fairs.” The fact pattern set forth in the letter is as follows:

The employer allows (does not require as it is completely voluntary) its employees to participate in biometric screenings which test such things like an employee’s cholesterol level, blood pressure and nicotine usage, as the participation in such screening could reduce the individual employee’s insurance deductibles. The employer also allows employees to participate in wellness activities that may reduce an employee’s insurance premiums. These activities can include attending health classes, participating in Weight Watchers and using the employer-provided gym; however [these activities] are completely voluntary and do not relate to the employee’s job. Finally, the employer also allows employees to attend benefits fairs to learn about topics like employer-provided benefits and financial planning. Again, employees’ attendance at the fairs is entirely optional, open to all employees and not related to the employees’ jobs.

DOL analyzed the facts set forth in the letter using 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” and separate regulations (29 C.F.R. § 785.16.) which provide that an employee is not entitled to compensation for “off duty” time — “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.” Based on that analysis, WHD found that because “the activities described in the letter predominantly benefit the employee, they do not constitute compensable work time under the FLSA.”

As such, WHD concluded that regardless of whether the activities occur on-site or during regular working hours, “the FLSA does not require compensation for the time employees choose to spend engaged in the activities described in the letter.”

DOL encourages the public to submit requests for opinion letters to WHD using this website and reminds the public that 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.