The U.S. Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”) issued an opinion letter clarifying the compensability of time that employees spend attending voluntary training under the Fair Labor Standards Act (“FLSA”). In FLSA2020-15, the DOL examined six hypothetical scenarios presented by a non-profit hospice care provider that offers funds to non-exempt (e.g., overtime-eligible) employees for continuing education (“CEU”). CEU attendance is entirely voluntary – employees are not required to use the funds, nor attend any particular CEU class. Also, employees gain no work-related benefit from attending, nor do they incur penalty for electing to not attend.
Generally, FLSA regulations require that employers pay employees for time spent attending lectures, meetings, training programs, and similar activities unless all of the following four criteria are met:
- Attendance is outside the employee’s regular working hours;
- Attendance is voluntary;
- The course, lecture or meeting is not related to the employee’s job; and
- The employee does not perform any productive work during such attendance.
29 C.F.R. §785.27. There are two exceptions to the third requirement. First, if an employee on her own initiative attends an independent school, college, or trade school after hours, the time is not considered hours worked, even if the courses are related to her job, and therefore is not compensable. 29 C.F.R. §785.30. Second, “special situations” exist in which time spent attending courses, lectures, or training session is not regarded as hours worked. In one such situation, an employer may establish, for the benefit of its employees a program of instruction that corresponds to courses offered by independent bona fide institutions of learning. The time an employee voluntarily attends such courses outside of working hours is not considered hours worked even if the courses are directly related to her job. 29 C.F.R. §785.31.
The DOL addressed six different scenarios, in which employee attendance at a training was voluntary and the employee did not perform productive work (e.g., the second and fourth requirements are met).
Scenario 1: An employee views an on-demand webinar directly related to her job, which provides CEU credit toward her professional licensing requirement. Although she could view it any time, she decides to view it during off-work time.
The DOL concluded this is non compensable time under the “special situation” exception. 29 C.F.R. §785.31. The DOL noted that under these circumstances, it is immaterial whether the course was offered by the employer or a third party. It is also immaterial that the employee could have viewed the webinar during work time; of consequence is when “attendance” did in fact occur. Id.
Scenario 2: An employee views an on-demand webinar directly related to his job, which does not count toward CEU requirements. Although he could view it any time, he decides to view it during off-work time.
The DOL concluded that it did not have sufficient information to determine whether the employee’s time viewing the webinar qualifies as working for FLSA purposes. If additional facts demonstrated that the webinar corresponds to courses offered by independent bona fide institutions of learning, and the other regulatory requirements are met, then time spent watching the webinar time would not be compensable. Also, if the employee attends an independent school, college, or trade school and the webinar is part of that attendance, and other regulatory requirements are met, then the time would not be compensable.
Scenario 3: An employee views an on-demand webinar directly related to his job and does not have a CEU component. Although he could view it any time, he decides to view it during his work hours.
The DOL concluded that this is compensable time for FLSA purposes because it takes place during working hours. The fact that the webinar is voluntary and can be viewed during off-work time is immaterial. The DOL noted that an employer may establish a policy prohibiting viewing during regular working hours.
Scenario 4: An employee views an on-demand webinar that is not directly related to his job and does not have a CEU component. Although he could view it any time, he decides to view it during his regular work hours.
The DOL concluded that this is compensable time for FLSA purposes even though the webinar is not directly related to his job, because it takes place during working hours. The DOL reiterated that an employer may establish a policy prohibiting viewing during regular working hours.
Scenario 5: An employee views an on-demand webinar that is not directly related to her job but provides CEU credit toward her professional licensing requirement. Although she could view it any time, she chooses to view it during her regular work hours.
The DOL concluded that this is compensable time for FLSA purposes because it takes place during working hours. Again, an employer may establish a policy prohibiting viewing during regular working hours.
Scenario 6: An employee attends an in person, out-of-state, weekend conference with some topics that directly relate to her job. CEU credit toward her professional licensing requirement is available. Both the travel and the conference cut across her normal work hours, but the actual conference occurs on days she does not normally work.
The DOL concluded that this is non compensable time under the “special situation” exception because the training is voluntary, occurs outside of her regular working hours, and appears to correspond to courses offered by independent bona fide institutions of learning. 29 C.F.R. §785.31. Where time spent attending the conference is not considered hours worked, travel time is similarly excludable as personal travel time.
It is important to remember that when time is considered “hours worked” under the FLSA, it is not only compensable, but also must be included in the total number of hours worked for purposes of calculating whether an employee’s overtime threshold has been met. Although DOL opinion letters are not binding in court, they are useful guides for resolving payment issues. Relying on an opinion letter can bolster an employer’s defense that it acted in good faith with respect to wage and hour decisions.
The above information is only an overview, and you should consult with an attorney to ensure you are properly calculating regular and overtime rates.
For further information, please contact:
Art Hartinger
ahartinger@publiclawgroup.com
415.848.7231
Anastasia Bondarchuk
abondarchuk@publiclawgroup.com
415.817.9958