15 Feb DOL Examines Compensation for Training Time
In a new opinion letter, the Department of Labor’s Wage and Hour Division examined the compensability of training time [FLSA 2020-15, 11/3/2020].
Basic rules. Two keys to the compensability of training time are whether the training is related to the employee’s job and whether it takes place during working hours.
Under Department of Labor (DOL) regulations, attendance at lectures, meetings, training programs, and similar activities is not counted as working time if:
- Attendance is outside 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 attendance [29 C.F.R. §785.27].
There are two “special situations” in which training time is not counted as hours worked even if the training is directly related to the employee’s job.
| 1. | Voluntary attendance by an employee outside of work hours at a program that corresponds to courses offered by an independent bona fide institution of learning is not counted as hours worked even if the training is directly related to the employee’s job or paid for by the employer. |
| 2. | Where the employee on his or her own initiative attends an independent school, college, or trade school after hours, the time is not counted as hours worked even if the training is job-related [29 C.F.R. §§785.30, 785.31]. |
However, as the opinion letter illustrates, on-the-job training time may be a different story.
The opinion letter examined six scenarios. In each situation, the employer provides continuing education funds that can be used for voluntary training, which may or may not be job-related.
Scenario #1. Employee uses employer funds for an on-demand webinar that is directly related to her job and that also counts toward her continuing education requirements for her professional license. Employee can view the webinar at any time but chooses to do so during off hours.
The DOL says that the time spent by the employee viewing the webinar can be treated as unpaid time. Although the webinar is directly related to the employee’s job, this is a “special situation” that is not counted as compensable time. The webinar appears to correspond to courses offered by independent institutions because it satisfies continuing education requirements, and because the employee views it during off hours, attendance is voluntary.
Scenario #2. Employee uses employer funds for an on-demand webinar that is directly related to his job but has no continuing education component. Again, the employee chooses to view the webinar during off-work time.
There are not enough facts to determine whether this scenario falls into the “special situation” category. The employee’s attendance is voluntary and during off-work hours. However, because there is no continuing education component to the webinar, it is not clear whether the training corresponds to courses offered by an independent institution. The DOL noted that a course will generally meet that requirement if the course content is not tailored to any particular employer or job held by the employee.
Scenario #3. Same facts as scenario #2, but the employee chooses to view the webinar during work hours.
In this case, the DOL opinion letter makes it clear that “Employee participation during regular work hours in a training program that directly related to the employee’s job is work time for FLSA purposes.” The fact that the webinars are voluntary and could have been viewed outside working hours is immaterial because work not requested but suffered or permitted by the employer is work time. While there are exceptions under which voluntary attendance at job-related training does not qualify as work time, those exceptions apply only to attendance during off-work hours.
Scenario #4. Employee uses employer funds for an on-demand webinar that is not directly related to his job and that has no continuing education component. The employee could view the webinar at any time but does so during work hours.
Although the webinar is not job-related, the viewing time qualifies as work time for FLSA purposes because it takes place during regular work hours.
Scenario #5. Employee uses funds for an on-demand webinar that is not directly job-related but that counts toward continuing education requirements for her professional license. The employee chooses to view the webinar during work hours.
As in Scenario #4, the viewing time counts as work under the FLSA because it takes place during work time.
Note: In scenarios 3, 4, and 5, the DOL makes it clear that an employer can establish a policy prohibiting viewing during work time.
Scenario #6. Employee uses education funds for an in-person weekend conference that covers topics directly related to her job. She travels out of town to attend; the time spent cuts across her normal work hours, but the actual conference takes places on days she does not normally work.
The DOL says that the employee does not have to be compensated for any of her travel or training time, provided that the training is voluntary and that she does not perform any productive work during the trip. The conference itself would appear to be a “special situation” in which compensation is not required because the training is voluntary, outside working hours, and appears to correspond to courses offered by independent institutions of learning. Moreover, the time spent traveling is excludable as personal travel. According to the DOL, travel at the employee’s own option need not be considered hours worked even thought the travel was done during hours that were normally part of the employee’s work day if, in fact, on the personal travel day the employee’s workday ended before the beginning of the travel.
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