Cooper Walinski, LPA

Does the time an employee spends getting a physical exam, being fingerprinted, or completing drug testing constitute "time worked" for purposes of the FLSA?"

The Department of Labor has issued a Fact Sheet on this very issue. Employers often require employees to take certain tests after being hired, or as a condition on an offer of employment. Further testing may be necessary on a periodic basis during the term of employment. The DOL has stated that the time spent traveling to and from the tests and the time spent waiting for and undergoing the tests is “probably” time worked and must be paid because the employee is subject to the employer’s discretion and control, and the tests restrict the employee’s freedom of movement for the purpose of serving the employer’s interests. Whether the tests are scheduled during the employee’s regularly scheduled work hours does not affect this determination. For a copy of the fact sheet, go to: http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER13.asp

With regard to pre-employment tests that may be required before an offer of employment has been made, however, the employer is probably not obligated to pay for the time spent completing the tests. Pre-employment medical tests are prohibited by the Americans with Disabilities Act, but an employer may require non-medical tests before hiring an applicant. Companies are not obligated to pay for the time spent completing such pre-employment requirements because the FLSA applies to “employees,” not applicants.

An employer may also require pre-employment training. The Wage and Hour Administrator has formulated a list of six factors that it will consider in deciding whether a trainee is an employee within the meaning of the FLSA. If all six of the following criteria are satisfied, the individual is not an employee and is therefore not entitled to compensation:

1.) The training is similar to the instruction that would be given in a vocational school (even if it involves the actual operation of the company’s facilities);

2.) The training is conducted for the benefit of the individual rather than the company;

3.) The trainees do not displace employees (but employees may closely supervise the individual during the training);

4.) The company does not gain an immediate advantage, and the business operations may actually be impeded by the training;

5.) The trainees are not entitled to a job when they complete the training; and

6.) The individual and the company understand that no wages are due for the training.

These criteria are set forth in the Wage & Hour Manual (BNA) 91:416 (1975) and are also listed in an October 19, 2004 Opinion Letter, FLAS2004-16, available at: http://www.dol.gov/esa/whd/opinion/FLSA/2004/2004_10_19_16_FLSA_PreemploymentTraining.pdf

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