Last week, we discussed the Wage and Hour Division’s letter pertaining to no-fault attendance policies and whether employers were retaliating based on an employee’s use of protected FMLA leave. Analysis of that letter can be found here: http://wiley-law.com/a-wage-and-hour-letter-that-may-impact-the-way-you-operate/.
In FLSA 2018-20, the question was whether employees should be compensated for time spent at an employer-sponsored benefits fair, where employees could voluntarily participate in biometric screenings, wellness activities and learn about benefits.
The DOL found that compensation is not required where: employees are the only party receiving a direct financial benefit from participation; employees are able to make a more informed decision about health insurance benefits; participation is completely voluntary; and no job-related duties are being performed.
The WHD also found that because the employer allowed employees to voluntarily participate in the activities, the activities constituted “non-compensable ‘off-duty’ time” under the regulations, and their conclusion would be “the same regardless of whether the activities occur on-site or during regular working hours.”
While this is a promising opinion from the WHD, some caution should be exercised by employers who provide an opportunity for employees to attend a benefits fair. Most importantly, you (and your insurer) WANT your employees to go through biometric screening. While very basic, biometric screening can help employees in recognizing problem health areas such as BMI and cholesterol levels. Furthermore, there are certain employees whose only time seeing a health professional is during employer-provided health screening. Refusing to pay employees for participating in health screenings may discourage them from attending.
Secondly, an argument could be raised that due to the benefits an employer receives based on high employee participation in biometric screening, such as lower total premiums or rebates, that an employer is receiving a direct benefit based on employee participation. The Wage and Hour Division was not presented with that information, and did not respond to that possibility as a result. But if such an agreement exists between the employer and an insurer, you may want to pay your employees for their attendance.
For questions such as this, it is always a good idea to consult with your legal representation. If you have any questions regarding any wage and hour issues, feel free to contact us at the Wiley Law Office for answers you can trust.