Month: April 2015

By Danielle Moss, Esq.

Executive Summary: Agency employed homecare workers must be compensated for mandatory in-service time, but need not be compensated for other training time if each of the following four criteria are met:

1. Attendance is outside the worker’s regular work hours;
2. Attendance is voluntary;
3. The course, lecture, or meeting is not directly related to the worker’s job; and
4. The worker does not perform any productive work during such attendance.

29 C.F.R. § 785.27.

Training time that does not meet these criteria is compensable because the Fair Labor Standards Act (“FLSA”) requires that workers must be paid for all “hours worked.”

Training time is hours worked when the training primarily benefits the employer. Whether or not training primarily benefits the employer is a question of fact. Both the United States and the New York State Department of Labor (“NY DOL”) will utilize the above four criteria, along with any other relevant considerations, that could help determine whether the training primarily benefits the employer or worker. In general, the more latitude, flexibility, and choice workers have with respect to their training, the less likely the time spent at such training will be compensable.

Discussion

Though training that primarily benefits the employer is generally compensable, pre-employment training is distinguishable from post-employment training. Time spent attending training programs that are a precondition to permanent employment may not be compensable. Bienkowski v. Northwestern University, 285 F.3d 138 (1st Cir. 2002). In Bienkowski, the court held that an employer was not required to pay probationary employees for hours spent at trainings, which were a precondition to their employment, even if the employees were permitted to complete these trainings while working for the employer on a probationary basis.

Certification Training

A state mandated training that enables a worker to obtain or maintain a state certification/license that could be used for any job, with any employer, is primarily for the benefit of the worker and not compensable time. Thus, time spent in training in order to obtain a certification as a home health aide or a personal care aide is non-compensable time.

In order to prevent training time from being compensable time, employers should ensure that the training offered is (a) outside work hours, (b) voluntary, (c) not directly related to the worker’s job (and in the alternative, if directly related to the worker’s job, that it is transferable) and (d) that no productive work is performed by the worker during the training.

A.          Outside Work Hours

If a worker attends training during regularly scheduled work hours, the training time is compensable. However, if a worker on her own initiative attends an independent school, college or trade school after hours, the time is not hours worked for the employer even if the courses are related to her job. 29 CFR 785.30. An employer should not impose additional requirements on a worker (e.g. taking a particular course for the benefit of the employer, filling out work assignments during such training, etc.), such that a worker’s attendance at such training, even if outside work hours, becomes compensable time.

B.          Voluntariness

Attendance at a training is not considered voluntary if it is required by the employer, or if the worker is “given to understand or led to believe that her present working conditions or the continuance of her employment would be adversely affected by non-attendance.” 29 C.F.R. § 785.28.

Employers should be mindful of how training is presented to workers by supervisors. If an employer, or the representatives thereof, communicate to a worker that they must attend the training prior to their assignment to a home care case, though the training may be “voluntary in name,” it may not be considered voluntary in fact, and could be considered compensable time.

It is important to note that if a home care agency’s license is conditioned upon the state required training of workers, the attendance at continuing education and/or state mandated licensing requirements is not voluntary and is compensable time.

C.          “Directly Related” to Worker’s Job

Training is considered “directly related” to the worker’s job if “it is designed to make the worker handle her job more effectively, as distinguished from training him/her for another job, or to a new or additional skill.” 29 C.F.R. § 785.29. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the worker to a higher skill, and is not intended to make the worker more efficient in her present job, the training is not considered directly related to the worker’s job even though the course incidentally improves her skill in doing her regular work. 29 CFR 785.29.

Time spent in “upgrade” training from personal care aide to home health aide is likely compensable and therefore, employers should be mindful of time employees spend at upgrade training.

In addition to upgrade training, workers may be interested in specialty trainings to improve their skills. Regardless of what that specific training may be (e.g., Alzheimer’s care) if the training directly relates to the performance of the worker’s job duties, such training time is most likely compensable.

There are special circumstances where a worker’s time spent in attending lectures, training sessions, and courses of instruction will not be considered compensable time. For example, an Agency may establish for the benefit of workers a program of instruction that corresponds to courses offered by an independent bona fide institution of learning. Voluntary attendance by an worker at such courses outside of working hours would not be hours worked even if they are directly related to her job, or paid for by the employer. 29 CFR 785.31.

D.          No Productive Work Performed

When productive work such as completion of Agency assigned work, study of materials distributed by the Agency, or other work-related assignments are performed during a training class, the time spent completing productive work assignments is compensable. Therefore, employers should not assign homework or materials for workers to review or complete in anticipation of, or following a training, if the employer does not want such time to be compensable.

Action Steps to Protect Your Agency

1. The more latitude, flexibility, and choice workers are given with respect to a training, the less likely the training will be compensable. Employers should take steps to ensure that (a) the training(s) is transferrable to other jobs, (b) the training is held outside regular work hours, (c) the training is explicitly and implicitly voluntary, in that it is clear no repercussions will take place if workers do not attend the trainings, (c) that workers are not required or directed by the employer to take the training, and (d) no productive work is performed for the employer during the training.
2. To further limit the risk that time spent in training is compensable, employers should (a) secure the training at an independent school, college, or trade school that workers attend on their own initiative, or (b) establish training for the benefit of workers that corresponds to courses offered by independent bona fide institutions of learning. If an employer establishes training for the benefit of workers that corresponds to courses offered by an independent bona fide institution of learning, a worker’s voluntary attendance at such courses outside of regular working hours would not be considered compensable time, even if directly related to the worker’s job.
3. To effectively address the issue of payment for training time, agencies must notify workers that the time they spend in training must be recorded accurately.
4. Agencies need policies and procedures that lay out how training time will be compensated, and how workers can report time spent in training to the Agency. An example of such “hours worked” procedures would be to require written notice from the worker of any hours worked beyond those scheduled, which would include time spent in compensable training. Workers should be required to provide such information in the same payroll week as the additional hours were worked.

By Saima Zuberi, Esq.

Executive Summary. The general rule on travel time pay is that home-to-work travel (i.e. commuting time) is not compensable but travel time from one job site to another job site is compensable because such time is “all in the day’s work.”

          Discussion.

1.     Common Travel Time Scenarios for Home Care Workers

a.     If a home care worker travels to her first job assignment directly from home and returns home directly from her final job assignment site, the worker’s commuting time is not considered hours worked and generally need not be paid because it is a “normal incident of employment.” 29 C.F.R. § 785.35; Wage and Hour Opinion Letter, W-454, 1978 WL 51446 (Feb. 9, 1978). By comparison, if a home care worker travels to more than one worksite for the same employer during the workday, the worker must be compensated for travel time between each worksite because such travel is “all in the day’s work.”

However, if the travel to multiple worksites is not direct travel, and the home care worker is relieved from her duty long enough to engage in purely personal pursuits, only the time necessary to travel to the second worksite must be paid.

For example, Mary is a home care worker who is employed by Able Home Care Agency. She provides services to two of the agency’s clients, Mr. Jackson, from 9:00am to 11:30am, and Mr. Smith, from 2:00pm to 6:00pm. Mary drives to the two different worksites which are 30 minutes apart. She leaves Mr. Jackson’s home at 11:30am and goes to a restaurant for lunch, shops for herself, and then arrives at Mr. Smith’s home at 2:00pm.

Because Mary is completely relieved from duty long enough to use the time effectively for her own purposes (i.e., lunch and shopping) not all of the time is hours worked. The 30 minutes required to travel between the two homes is hours worked and must be paid by the Able Home Care Agency even though Mary did not travel directly between clients.[1]

Similarly, time spent traveling home before a home care worker travels to an additional client for the day is not considered hours worked and is not compensable.

For example, Christine is a home care worker who is employed by Handy Home Care Agency. She provides services to two of the agency’s clients, Mr. Jackson, from 9:00am to 11:30am, and Mr. Smith, from 2:00pm to 6:00pm. Christine drives to the two different worksites which are 30 minutes apart. She leaves Mr. Jackson’s home at 11:30am and goes home for lunch and then arrives at Mr. Smith’s home at 2:00pm.

Because Christine travels home before traveling to her second client, Mr. Smith, only the 30 minutes required to travel between the two clients is hours worked and must be paid by the Handy Home Care Agency.

b.     Time spent traveling on an emergency assignment after a home care worker has already gone home following completion of a regular work day is an exception to the rule that commuting time is not compensable. If a home care worker is called out to travel a substantial distance to perform an emergency job for a client, all time spent on such travel, both going to the client and returning home, is considered hours worked and is compensable. 29 C.F.R. § 785.36.

c.     Home care workers who work for multiple employers in the same day will not be compensated for time spent traveling between the different employers’ clients. 29 C.F.R. § 785.38; U.S. Department of Labor Domestic Service Final Rule Frequently Asked Questions, available at: www.dol.gov/whd/homecare/faq.htm#travel.

2.     Time Travel to and from Other Work-Related Activities

a.     Agencies must also pay home care workers for intra-day travel time that is primarily for the benefit of the employer. For example, if an agency requires a home care worker to travel to obtain an annual physical, the travel time is compensable. See, e.g., Copeland v. ABB, Inc., 521 F.3d 1010, 13 Wage & Hour Cas. 2d (BNA) 705, U.S. DOL, FLSA Hours Worked Advisor, available at: http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER13.asp; U.S. DOL, Wage and Hour Division, Opinion FLSA 2001-7 (Feb. 16, 2001) available at: http://www.dol.gov/whd/opinion/FLSA/2001/2001_02_16_7_FLSA.htm; see also 29 C.F.R. § 785.43. The same is true if the home care worker must travel to the agency to obtain durable medical equipment, like plastic gloves, or to take part in mandatory in-service training. 29 C.F.R. §§ 785.27, 785.38.

b.     Time spent traveling to the agency for administrative purposes (e.g., for internal investigations or for internal disciplinary reasons) during a regular work day is compensable because it is involuntary and for the benefit of the employer. 29 C.F.R. § 785.27. However, if the home care worker is requested to appear at the agency for administrative purposes outside of the workers’s regular hours, such as on a nonscheduled workday, the home care agency does not have to pay for this travel time. 29 C.F.R. § 785.27. Time spent in internal grievance conferences during working hours is also generally considered work time. 29 C.F.R. § 785.42. U.S. Department of Labor Domestic Service Final Rule Frequently Asked Questions, available at: www.dol.gov/whd/homecare/faq.htm#travel.

c.     Bona fide meal periods generally are not compensable work time if the worker is completely relieved from duty for the purpose of eating regular meals. 29 C.F.R. § 785.41. But travel time that is also used as meal time is compensable. Also, if a worker is required to perform any duties, whether active or inactive, including compensable travel time, while eating, such time is considered hours worked. U.S. Department of Labor Wage and Hour Division, Fact Sheet #22: Hours Worked under the FLSA, available at: www.dol.gov/whd/regs/compliance /whdfs22.pdf. Notwithstanding the forgoing, a worker is entitled to uninterrupted meal periods.

d.     If a home care worker provides assistance to a client with an illness, injury or disability by driving or accompanying that client to an errand or appointment, such as the grocery store or the doctor’s office, that time must be paid because it is considered “all in the day’s work.”

3.     Overtime Includes Travel Time

a.     Travel time that is considered “hours worked” under the FLSA is counted in computing a worker’s eligibility for overtime in any week because it is considered hours worked. Travel time for a home care worker employed in New York State must be compensated at a minimum rate of $8.75 per hour, the New York minimum wage rate. (The New York State Wage Parity Act minimum wage rate of $10.00 per hour does not apply because that rate only applies to Medicaid-funded “episode of care” hours worked.)

b.     Ordinarily, wages and overtime earned in a particular workweek must be paid to the worker on the regular pay day for the pay period in which the wages and overtime pay were earned. 29 C.F.R. § 778.106; U.S. DOL Wage and Hour Division, Fact Sheet #23: Overtime Pay Requirements of the FLSA, available at: http://www.dol.gov/whd/regs/compliance/whdfs23.pdf.

c.     A worker’s late submission of her actual travel time can throw off an agency’s pay calculations and can affect the worker’s overtime calculations for a week already paid. To avoid this problem, agencies may set deadlines by which their workers must submit their travel time, including, any corrections to previously submitted travel time, and can impose discipline for their employee’s failure to do so. If the correct amount of overtime pay cannot be determined until after the regular pay period, agencies should pay their workers their correct overtime compensation as soon as possible. Agencies should not delay payment for a period longer than is reasonably necessary for the agency to calculate and arrange for payment of the amount due and should strive to pay their workers by the next payday after the calculation is possible.

4.     Accounting for Travel Time

a.     Agencies must pay their workers for their actual travel time, which requires that travel time be accounted for accurately. Agencies cannot use rough estimates or arbitrary formulas to compute hours worked. 29 C.F.R. § 785.47. Because workers have first-hand knowledge of their actual travel time, agencies can pass on to their workers the responsibility of reporting, in writing, the amount of travel time to their employers.

b.     Where a worker’s actual travel time exceeds estimated travel time, hours for payment of wages and overtime pay must be re-computed for any such weeks because the employer must pay the worker for hours worked, which is based on how many actual hours, not estimated hours, are worked by the worker. See 29 C.F.R. § 785.48 (employees should be compensated “properly for all the time they have actually worked”.) The actual, not estimated, amount of travel time must be paid, taking into account if the worker’s travel is delayed due to traffic, weather, or other uncontrollable disruptions. See 29 C.F.R. § 785.48.

c.     Notwithstanding the above, travel time that is de minimis (insignificant) need not be paid. 29 C.F.R. § 785.47. In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded. 29 C.F.R. § 785.47. But, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained. 29 C.F.R. § 785.47.

Action Steps to Protect Your Agency

1.     To protect against liability for unpaid wages and overtime pay, home care agencies should establish clear policies on travel time, and maintain accurate records of employee travel time..

2.     Travel time policies should define what is compensable travel time, establish best practice timekeeping systems to accurately record travel time, require workers to submit records of their travel time on a regular basis, such as no later than the end of the relevant pay period, and also implement disciplinary guidelines for the failure to timely submit travel time.

3.     Home care agencies should utilize electronic timekeeping systems, such as smartphone applications, by which their workers can record their travel time.

4.     Home care agencies should also consider ways to limit travel time costs such as assigning home care workers to work in limited geographic areas to reduce their travel time between assignments.

[1] This example was adapted from the U.S. Department of Labor Domestic Service Final Rule Frequently Asked Questions, available at: www.dol.gov/whd/homecare/faq.htm#travel.