On March 14, 2019, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issued two new opinion letters addressing compliance under the Fair Labor Standards Act (FLSA). The first opinion letter addresses wage and recordkeeping requirements for residential janitors. The second opinion letter addresses the compensability of time spent by employees participating in an employer-sponsored community service program. This opinion letter (FLSA 2019-2) addresses whether time spent by an employee participating in an employer’s voluntary charitable program constitutes hours worked under the FLSA.
The employer that submitted the inquiry to the WHD provides its employees with an optional community service program. Under the program, employees engage in certain volunteer activities that the employer sponsors or the employees themselves select. The employer compensates employees for the time they spend on volunteer activities during working hours or while they are required to be on the employer’s premises. In addition, employees spend many hours on volunteer activities outside normal working hours. At the end of the year, the employer provides a discretionary bonus to the team of employees that provided the greatest community impact.
The WHD notes that the FLSA was not designed to discourage or impede volunteer activities. However, 29 C.F.R. § 553.101 makes clear that Congress intended to ensure, through the FLSA, that employers are not manipulating or misusing the minimum wage or overtime laws through undue pressure for employees to “volunteer” their services. See.
In reviewing this employer’s program, the WHD found that the time spent in the volunteer program was not hours worked under the FLSA. This finding was based on the fact that the employer:
- did not require participation in the program;
- did not control or direct the volunteer work;
- did not create any adverse consequences for failing to participate in the program; and
- did not guarantee bonuses to participating employees but rather disbursed bonuses on a discretionary basis to the most successful community service team.
Thus, the WHD determined that the time spent in the volunteer program was not hours worked under the FLSA so long as the employer “does not unduly pressure its employees to participate.”
Finally, the WHD also found that the employer could use a mobile application to track participating employees’ time spent in the volunteer program. However, if the application was used to direct or control employees’ activities or to give instructions, then the time spent using the application would become compensable hours under the FLSA.
Employers interested in learning more about the latest wage and hour developments can join us for a one-hour webinar, “The New Overtime Proposal: What Employers Need to Know to Prepare,” on Monday, March 18, 2019, at 2:00 p.m. Eastern. Our speakers, Washington, D.C. shareholder Alfred B. Robinson, Jr. and Greenville, S.C. shareholder Charles E. McDonald III, will explain the new overtime proposal, its impact on employers, and what the future may bring. To register for this timely program, click here.