The U.S. DOL Issues Opinion on Whether Wellness Activities Constitute Compensable Time

On August 28, 2028, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued an Opinion Letter (FLSA2018-20) in response to the request for an opinion concerning whether the Fair Labor Standards Act (FLSA) requires compensation for the time an employee spends voluntarily participating in certain wellness activities, biometric screenings, and benefits fairs. Specifically, the inquiry pertained to the following voluntary activities which employees could choose to participate in or not to participate in:
  • Biometric screening, which tests, among other things, 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.
  • Attending a benefits fair to learn about topics such as financial planning, employer-provided benefits, or college attendance opportunities.

The DOL found that because the activities predominantly benefit the employee, they do not constitute compensable worktime under the FLSA. Additionally, the DOL concluded that when an employer allows an employee to voluntarily participate in the activities, the employer is relieving the employee of all job duties and therefore, the activities described constitute noncompensable “off duty” time under 29 C.F.R. § 785.16. In light of the decision, employers may want to take a closer look at their wellness programs to determine whether the activities offered are compensable or not. It is important to note that the opinion is fact specific, and thus if participation in activities is mandatory or job related, then such time may be compensable.