DOL Issues New Opinion Letters Regarding Compensation for Training Time
By Thomas J. Cathey, Director, Legal/Legislative Issues, ACSI
Recently the U.S. Department of Labor (DOL) sent out a number of opinion letters regarding compensation of nonexempt employees for training time.
In the first opinion letter, a company offered voluntary training during work hours so that its employees could become more proficient at their jobs. The employees were compensated for the time they spent in the training. However, the employees who wanted to take the training were required to complete four Web-based prerequisite classes at home on their own time. Each of these classes took about 10 hours. The DOL’s Wage and Hour Division stated that “by making the [employees] better able to perform their jobs, the training and the prerequisite classes are directly related to [their] jobs.” Therefore, in this scenario, the time spent completing the job-related
prerequisite classes at home was compensable.
In the second opinion letter (FLSA2009-15), a city required “certain employees to attend and pass various training programs intended to help the employees become more proficient at their jobs. The city employees attend training during normal work hours. During the training, the instructor informs the employees that they must read and/or study selected material and be prepared to discuss this material during the next class. Employees leave the classroom and go home or to their hotel (if the training is out of town) to study or read the assigned material.” The DOL stated that when the completion of homework is a requirement of a compensable training class, the time spent completing such assignments is also compensable. However, the DOL went on to say (1) that the city could establish a specific amount of time the employees could spend completing assignments outside of the classroom and after normal work hours and (2) that the city might still have to pay the employees if they end up spending more than the stated allowable time to complete the assignments. The DOL made the following suggestion: “The city could control the study time by allowing the employees a realistic time to complete their reading and study assignment within the class period or within the normal work day.”
In the third opinion letter, the DOL responded to a request regarding “whether time spent by child care center employees in State-mandated training programs, offered by the employer and required of the employee as a condition of maintaining her State certificate, is hours worked under the Fair Labor Standards Act (FLSA).” The facility was offering “day care and education to children ranging in age from infants to school age.” It was licensed by the state, and it employed state-certified childcare teachers. The center offered in-service training or continuing education after regular business hours at the daycare center in a state that required employees to take such training to maintain their state certification.
Under 29 C.F.R. [Code of Federal Regulations] § 785.27, “[a]ttendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met”: (a) attendance is outside of the employee’s regular working hours; (b) attendance is in fact voluntary; (c) the course, lecture, or meeting is not directly related to the employee’s job; and (d) the employee does not perform any productive work during such attendance.
The opinion letter states that the DOL believed that points a, b, and d were met. However, it also states that with respect to point c above, federal regulation “29 C.F.R. § 785.31 provides an exception from the requirement that the training not be directly related to the employee’s job where the training is for the benefit of the employee and corresponds to courses offered by independent bona fide institutions of learning. Voluntary attendance of such training by the employee outside normal working hours would not be hours worked even though the training is clearly related to the employee’s job.” The DOL went on to say, “In the child care industry, we regard childcare training to be for the benefit of the employees when it provides instruction of general applicability that enables an individual to gain or continue employment with any child care service provider.”
So it was the DOL’s opinion (FLSA2009-1) that the employees’ voluntary time, which was spent attending state-required in-service training or continuing education provided at the daycare center, should not be considered hours worked under FLSA, partially because the training benefitted the employees by pertaining to employment at any daycare center in the state.
Note: This is a deviation from a previous DOL fact sheet. Therefore, even though this opinion is valid, schools should be very cautious about not paying their hourly, nonexempt employees for training required by the state. It would be better to err on the side of paying those employees for their professional dvelopment time. If a judge were to rule against a childcare center, it could cost the center up to three years of back pay plus interest. Remember that some states have even stricter labor laws that must be followed.
Compensation 13.2