In November 2020, the DOL issued a new opinion letter addressing when an employer needs to pay employees for time spent in voluntary training programs when no productive work is performed. The employer who submitted the letter is a non-profit hospice care provider and many of its clinical staff members have annual continuing education requirements for state licensing purposes.

The employer pays for the cost of continuing education courses, but requires employees to utilize PTO time when they choose to attend such training during normal work hours. If the voluntary training occurs after work hours, no compensation is provided. Employee requests for these designated funds is most often motivated by the desire to maintain a professional license, but the employer does not require any employee to attend this voluntary training.

Generally, FLSA regulations provide that attendance at lectures, meetings, training programs and similar activities need not be counted as working time (and therefore required to be paid by the employer) if the following four criteria are met:

(a) attendance is outside 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 regulations also contemplate, however, that training time may be excluded from an employee’s work time for FLSA purposes—even though the training directly relates to the employee’s job—in “special situations,” including where the training is attended outside of the employee’s regular work hours and either “corresponds to courses offered by independent bona fide institutions of learning” or the employee attends on his/her own initiative.

Under this framework, the employer asked for guidance regarding the compensability of employee training time in six specific scenarios.

Scenario 1: A nurse requests approved education funds for an on-demand webinar, which is both related to her job and has continuing education credits for state licensing requirements, and she decides to watch it after work hours (though it is accessible to view at any time).

Answer 1: Employer may treat this time as unpaid because the webinar “corresponds to courses offered by independent bona fide institutions of learning” since it can satisfy professional licensing requirements and the employee attended both voluntarily and outside of work hours. The DOL notes that whether the webinar was offered by the employer or someone else and the fact that the employee could have chosen to view the webinar during work hours are both immaterial.

Scenario 2: An accounting clerk requests approved education funds for an on-demand webinar that has no continuing education credits but is directly related to his job, and he decides to view the webinar during his off-work time.

Answer 2: More information is needed to determine whether the employer may treat this time as unpaid. The DOL notes that a specific training does not need to fulfill a professional licensing requirement in order to be excluded from hours worked, but may also qualify if “the skill or knowledge imparted through the training would enable an individual to gain or continue employment with any employer” even if the course content is “not tailored to any particular requirements…of a particular job.” If additional facts demonstrate 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 outside work hours would not be considered compensable.

Scenario 3: Another accounting clerk requests approved education funds for an on-demand webinar that has no continuing education credits but is directly related to his job, and he decides to view the webinar during his work hours.

Answer 3: Employer must treat this time as paid work; employee participation during regular work hours in a training program that directly relates to the employee’s job is work time for FLSA purposes. However, the employer may establish a policy prohibiting employees from viewing such webinars during regular working hours without running afoul of the FLSA.

Scenario 4: A third accounting clerk requests approved education funds for an on-demand webinar that has no continuing education credits and is not directly related to his job, and he decides to view the webinar during his work hours.

Answer 4: Employer must treat this time as paid work; even though the webinar is not directly related to the accounting clerk’s job, the viewing time would qualify as work time for FMLA purposes because he viewed the webinar during his regular work hours. As in the last example, the employer may nonetheless establish a policy prohibiting employees from viewing such webinars during regular working hours if it chooses to do so.

Scenario 5: A nurse requests approved education funds for an on-demand webinar that has continuing education credits but is not directly related to her job, and she decides to view the webinar during her regular work hours.

Answer 5: Employer must treat this time as paid work; the viewing time would qualify as work time for FLSA purposes because the nurse views the webinar during her regular work hours. Again, the employee may establish a policy prohibiting such viewing during regular work hours if it chooses to do so.

Scenario 6: Another nurse requests approved education funds for an out-of-town, in-person weekend conference that covers several topics—some of which directly relate to her job, while others do not—and has continuing education credits. The travel required to reach the conference cuts across her normal work hours, but the actual conference occurs on days she doesn’t normally work.

Answer 6: Employer may treat all travel and training time as unpaid as long as the nurse’s participation in the training is voluntary and she does not perform any productive work during the trip. Time spent at the actual conference is the sort of “special situation” that need not count as hours worked because the training is voluntary, occurs outside of the nurse’s regular working hours, and corresponds to courses offered by independent bona fid institutions of learning. Time spent traveling to reach the conference would be considered personal travel time and is not compensable even though the travel was done during hours that were normally part of the employee’s workday as long as her actual workday ended before she started her trip.

The takeaway from the above examples is that employers need to pay employees for any time they spend in voluntary training during regular work hours, regardless of whether that training directly relates to their job or earns them continuing education credits. If employers want to implement a policy prohibiting employees from viewing this type of training during work hours, they may do so (in advance) without running afoul of the FLSA. Time spent in training outside of regular work hours is only compensable if it directly relates to the employee’s job and otherwise meets the necessary regulatory requirements discussed above.

By Rebecca D. Bullard, rbullard@dsda.com