Holiday Parties & the FLSA: Avoid A Lump Of Coal
The holiday season is here! While the rest of you enjoy your eggnog, employment lawyers worry about questions like whether the employer will be vicariously liable for issues that arise if employees consume too much alcohol, whether there will be sexual harassment between co-workers, or whether an injury that occurs during the holiday party will be covered by worker’s compensation.
This year, we review two questions to make sure your holiday party is in compliance with the Fair Labor Standards Act, which is the central piece of federal wage and hour legislation governing working time and payment of wages:
- Are employers required to pay non-exempt employees their regular wage to attend the holiday party?
- Do employers who have remote workers need to pay “travel time” to non-exempt employees if they attend to the holiday party?
Is Attendance at the Holiday Party Compensable Under Federal Law?
It depends. Federal regulations state that lectures, meetings, training programs, and similar activities need not be counted as working time if the following four criteria are met:
- Attendance is outside of the employee’s regular working hours;
- Attendance is in fact voluntary;
- The course, lecture, or meeting is not directly related to the employee’s job; and
- The employee does not perform any productive work during such attendance.
29 C.F.R. § 785.27. Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary if the employee is given to understand or led to believe that his or her present working conditions or the continuance of his or her employment would be adversely affected by nonattendance. 29 C.F.R. § 785.28. Does the employee perform any productive work during the attendance? Did they staff a prize booth? Were they involved in organizing the event and coordinating with caterer? If so, their time worked may be compensable under the FLSA.
Must Remote Workers be Paid for “Travel Time” getting to the Holiday Party Under Federal Law?
The Portal to Portal Act states that time spent commuting from home to the workplace generally does not count as work time. As the FLSA states, “[a]n employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home-to-work travel which is a normal incident of employment.” 29 C.F.R. § 785.35. However, the regulations go on to state that the rule applies only to time spent commuting before and after the employee starts their “workday”. Therefore, if an employee starts the day at a worksite, but then travels during the day to another worksite as part of their principal duties, then the time spent traveling may be compensable under the FLSA.
The question becomes whether an employer must pay remote workers “travel time” to or from the holiday party. The answer hinges on whether attendance is considered compensable hours worked. For example, if the holiday party is scheduled from 1:00 PM to 5:00 PM (during regular working hours), then the remote workers in attendance would be compensated for their time in attendance at the party. If such an employee works remotely from 8:00 AM to 12:30 PM, gets in their car, and drives to the holiday party, the travel time is likely compensable under the FLSA as well. If time in attendance at the party is not compensable (because it meets the criteria of 29 C.F.R. § 785.27), then remote workers might not be entitled to travel time compensation under the FLSA.
The FLSA and its regulations are very technical. Further, every state has its own wage and hour laws above and beyond the FLSA that covered employers must consider and comply with. Accordingly, you should confer with experienced legal counsel regarding the particular facts and circumstances of your situation to ensure that you are in compliance with the law. By preparing in advance and appropriately addressing tricky scenarios, you can focus on the goal – to express your gratitude and appreciation for your team.
Happy Holidays from Axley Attorneys!
