The WHD Addresses Whether Time That Non-Exempt Employees Spend In Voluntary Training Programs Is Compensable Under The FLSA

(An opinion letter is the WHD’s official written assessment of how a law that the WHD enforces applies in specific circumstances that an employer, employee, or other person or  entity has presented.) Here are the highlights.

Background

The letter responds to an inquiry from a hospice care provider. The provider employs non-exempt clinical staffers who, to remain licensed, must satisfy various continuing education (CEU) requirements. It also employs non-exempt support staff members, with no clinical responsibilities or CEU requirements.

The employer compensates employees in each group for time that they spend in employer-mandated training programs. But, it requires employees to substitute paid time off or vacation time for hours that they spend attending voluntary training programs during the workday. And, it pays employees nothing for time that they spend in after-hours voluntary training programs.

The employer asked whether it must pay non-exempt employees for time spent attending voluntary training programs in six scenarios, in which the employees perform no productive work.

Legal Principals

The WHD began its response by summarizing the applicable legal principles.

Under the FLSA, employers must pay employees for the time that the employers “suffer or permit [them] to work”. What is “work”? The statute doesn’t say. But, according to the Supreme Court, the distinction between compensable and non-compensable time turns on whether an employee spends it predominantly for the employee or the employer’s benefit. Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).

WHD regulations state that attendance at lectures, meetings, training programs, and similar activities need not be counted as work time if:

1. the session occurs beyond the employee’s regular work hours;
2. the employee’s attendance is voluntary;
3. the session isn’t directly related to the employee’s job; and
4. the employee performs no productive work while in the session.

29 C.F.R. § 785.27.

The regulations identify two situations in which training hours are not compensable under the FLSA, even if the training is job-related:

• First, when “special situations” exist in which time spent attending lectures, training sessions, and courses of instruction is not regarded as hours worked, such as when an employer establishes for its employees’ benefit a program of instruction that corresponds to courses offered by independent bona fide institutions of learning. 
• Second, if an employee on his or her own initiative attends, after hours, an independent school, college, or independent trade school.

29 C.F.R. §§ 785.30 – 785.31.

The Scenarios

With that overview, the opinion letter turns to the six scenarios that the employer asked the WHD to address.

Scenario No. 1

A clinical employee attends a job-related, on-demand webinar with a CEU component. She could attend it at any time, but she elects to do so while off duty. Must the employer pay her for her the time in the webinar?

No, says the WHD.

 Although the webinar is job-related, this is a “special situation”, under 29 C.F.R. § 785.31, in which the employee’s time is not compensable. That’s because (1) the webinar corresponds to courses that independent, bona fide education institutions offer; (2) the employee attends it on her own time; and (3) the program is voluntary.

Scenario No. 2

A non-clinical employee attends a job-related, on-demand webinar with no CEU component. He could attend it at any time, but he elects to do so while off duty. Must the employer pay him for his time in the webinar?

According to the WHD, the employer’s hypothetical is insufficiently detailed.

True, the webinar has no CEU component. That, however, doesn’t matter because, under 29 C.F.R. § 785.31, an employer “‘may establish for the benefit of his employees a program of instruction which corresponds to courses offered by independent bona fide institutions of learning,’ and ‘[v]oluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his job, or paid for by the employer.’”

That “correspond[ence]” exists if, for example, the employer’s training program’s content (1) “like that of the other instruction in bona fide institutions of learning, [is] not tailored to any peculiar requirements of a particular employer or of a particular job held by an individual employee”; and (2) is “such that the skill or knowledge imparted through training would enable an individual to gain or continue employment with any employer.”

Scenario No. 2 is silent about the training program’s content. Thus, the WHD can’t determine whether, under § 785.31, the employer may disregard hours that the employee spends in the program when calculating his pay.

Scenario No. 3

A non-clinical employee attends a job-related, on-demand webinar with no CEU component. She could attend it at any time, but she elects to do so while on duty. May the employer require her to substitute paid time off for her time in the webinar?

According to the WHD, the answer is no.

“Employee participation during regular work hours in a training program that directly relates to the employee’s job is work time for FLSA purposes.” That the webinar is voluntary, and the employee could attend it on her own time, don’t matter: “Work not requested but suffered or permitted is work time”, under the FLSA. And, while WHD regulations describe two situations in which time spent attending a job-related training program is not work time, those provisions address voluntary attendance that occurs “after” or “outside of” an employee’s regular work hours.

That said, the WHD’s assessment doesn’t leave employers without recourse. On the contrary, they may prohibit employees from participating in voluntary training programs during their workday.

Scenario No. 4

A non-clinical employee attends a non-job-related, on-demand webinar with no CEU component. He could attend it at any time, but he elects to do so while on duty. May the employer require him to substitute paid time off for his time in the webinar?

Again, according to the WHD, the answer is no. Although the webinar is not job-related, the employee’s time in it is compensable, under the FLSA, because he attends it during his workday.

Scenario No. 5

A clinical employee attends a non-job-related, on-demand webinar, with a CEU component. She could attend it at any time, but she elects to do so while on duty. May the employer require her to substitute paid time off for her time in the webinar?

No, says the WHD. As in Scenario No. 4, attending the webinar during the employee’s regular work time makes the time compensable under the FLSA, without regard to whether it’s job-related.

Scenario No. 6

A clinical employee attends an out-of-town, in-person, weekend conference that covers several topics, including some that are job-related and for which CEUs are available. The conference and the employee’s travel cut across her normal work hours, but the conference occurs on days on which she doesn’t normally work. Must the employer pay her for the time that she spends traveling and attending the conference? And, if so, may the employer require her to substitute paid time off for her travel and conference time?

According to the WHD, the time is not compensable. Rather, the conference presents the sort of “special situation” that, under 29 C.F.R. § 785.31, need not count as hours worked because the training is voluntary, occurs outside of the employee’s regular hours, and corresponds to courses offered by independent, bona fide institutions of learning. Likewise, under the FLSA, the employee’s travel time is personal and non-compensable.