Category Personnel/Employment
Title DOL Issues New Opinion Letters Regarding Compensation for Training Time
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Preview DOL Issues New Opinion Letters Regarding Compensation for Training Time
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DOL Issues New Opinion Letters Regarding Compensation for Training Time

In 2009, the U.S. Department of Labor (DOL) sent out a number of opinion letters regarding employers and employees. Three of those letters had to do with compensating employees for training time.

First Opinion Letter. A company offered voluntary training during work hours so its employees could be more proficient at their jobs. The employees were compensated for the time they were spent in 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.

View Opinion Letter FLSA2009-13 at https://www.dol.gov/whd/opinion/FLSA/2009/2009_01_15_13_FLSA.pdf

Second Opinion Letter. A particular 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 this 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 completing such assignments is also compensable. However, it went on to say 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. Although, it said, 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 employee a realistic time to complete their reading and study assignment within the class period or within the normal work day."

View Opinion Letter FLSA2009-15 at https://www.dol.gov/whd/opinion/FLSA/2009/2009_01_15_15_FLSA.pdf

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 certification, 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 requiring employees to take such training to maintain their state certification.

Under 26 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.

(d.) The employee does not perform any productive work during such attendance.

The opinion letter stated 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 through the training is clearly related to the employee's job." The DOL went on to say, "In the child care industry, we regard child care 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 that the employee's 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 benefited the employees by pertaining to employment at any daycare center in the state.

Note: This is a deviation from a previous fact sheet* provided by the DOL. 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-development time. If a judge were to rule against a childcare center, it could cost te center up to three years of back pay plus interest. Remember that some states have even stricter labor laws that must be followed.

View Opinion Letter FLSA2009-1 at https://www.dol.gov/whd/opinion/FLSA/2009/2009_01_07_01_FLSA.pdf

A Reminder and a Caution

  • Reminder: Remember that all three of these DOL opinion letters deal with non-exempt employees under FLSA, which establishes the minimum wage and a 40-hour threshold for overtime hours that must be compensated with time-and-a-half pay. Under FLSA, employees are divided into two broad categories of exempt and nonexempt, which are categories related to whether the employer has to pay employees overtime wages. Executive, professional, and administrative employees can qualify as exempt.
  • Caution: The Department of Labor looks at the duties of workers, not their titles, when determining whether or not they are properly classified as exempt from overtime pay.

You can find more about the Fail Labor Standards Act of the ACSI website at www.acsi.org/leg-resources.

*See Fact Sheet #46 at https://www.dol.gov/whd/regs/compliance/whdfs46.pdf

LLU 20.1

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought Laws vary by jusridiction, and the specific application of laws to particular facts requires the advice of an attorney.

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