In the first opinion letter, the DOL addressed “whether time spent by employees taking web-based prerequisite classes at home in preparation for a voluntary job-related training class is compensable time under the” FLSA. FLSA Op No. 2009-13 (1/15/09). In that letter, the employer employed “technicians who install, monitor, and service voice and data communications circuits,” including the Tellabs 5500. “Tellabs offers advanced training in the Tellabs 5500 equipment” and the employer hired Tellabs to conduct a voluntary training class during regular business hours for a few of the employer’s “technicians about the Tellabs 5500’s new and advanced features. . . . Technicians who take the class will be compensated for time spent in the class. . . . [However,] Tellabs requires that technicians taking the training class [to] first complete four web-based prerequisite classes. It is expected that the technicians will take the prerequisite classes on their own time at their homes . . . [and] that each prerequisite class will take approximately ten hours to complete.” The question posed was whether the employer was required to pay these technicians for the ten hours spent taking these web-based prerequisite classes from home.
As explained by the DOL, “[t]he FLSA requires than an employer compensate an employee for all hours worked. . . . This rule applies to work performed away from the premises or the job site, including work performed at home. ‘If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” 29 C.F.R. § 785.12.’”
“The Department’s regulations provide that certain training activities need not be treated as hours worked. The general rules for determining the compensability of training time are set forth in 29 C.F.R. §§ 785.27 through 785.32. . . . . As indicated in section 785.27, ‘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 DOL concluded that all but criterion (c) had been met in this situation “because the prerequisite classes are directly related to the technicians’ jobs. Section 785.29 provides that ‘training is directly related to the employee’s job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill.’ The training classes and the prerequisite classes offer instruction to enable the technicians to perform their present jobs better by giving them greater abilities to use the [Tellabs 5500] network system they are presently using. By making the technicians better able to perform their jobs, the training and the prerequisite classes are directly related to the technicians’ jobs.”
The DOL also noted that none of the available exceptions applied in this situation. For instance, “[s]ection 785.31 states that even if the training is clearly related to an employee’s job, voluntary participation outside of working hours need not be compensated if, for example, the course corresponds to courses offered by independent bona fide institutions of learning. The prerequisite classes, which are focused on learning ways to utilize a particular product, do not appear to correspond to courses offered by bona fide institutions of learning.” Therefore, the DOL opined “that the Company is obligated to compensate technicians for the time they spend at home completing required prerequisite classes in order to take the voluntary but job-related Tellabs training classes.”
In the second opinion letter, the DOL addressed whether “time spent outside normal working hours by city employees studying for city-required training programs, seminars, and classes” constitute compensable hours under the FLSA. FLSA Op. No. 2009-15 (1/15/09). In that letter, the employer 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.”
As indicated above, “[t]he FLSA requires that an employer compensate an employee for all hours worked.” However, under “certain circumstances, time spent by employees of state and local governments attending required training outside of regular working hours is considered to be non-compensable. 29 C.F.R. § 553.226(b). Examples of non-compensable time include time which is required by law for certification of public and private sector employees within a particular governmental jurisdiction (e.g., certification of public and private emergency rescue workers), . . . [or] required for certification of employees of a governmental jurisdiction by law of a higher level of government (e.g., where a State or county law imposes a training obligation on city employees), . . . even if all or part of the costs of the training is borne by the employer. 29 C.F.R. § 553.226(b)(1)-(3).”
Nonetheless, the DOL did not believe that the described training fell “within the regulations governing compensability of training time applicable to employees of state and local governments” and thus turned to FLSA regulations covered training time of private-sector employers [discussed above], “ which are set forth in 29 C.F.R. §§ 785.27 through 785.32.”
Applying the same criteria used in the prior opinion letter, the DOL found that the “time spent participating in the training programs” constituted compensable working hours because criteria (a), (b), and (c) were not satisfied. “Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by non-attendance.” 29 C.F.R. § 785.28. Further, “training is directly related to the employee’s job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill.” 29 C.F.R. § 785.29. As a result, time spent in mandatory training is generally compensable.”
However, “[t]ime spent in outside study is not compensable if the studying is not required by the employer. See Wage and Hour Opinion Letter September 27, 1984 . . . (“Time spent in reading or studying at home would not be compensable hours of work if time is allotted during regular working hours but some employees voluntarily do extra work at home on their own to bolster their ability.”); Wage and Hour Opinion Letter July 17, 1980 . . . (time spent studying after regular working hours, in connection with a training program, is not compensable because the excess study is not required by the employer); Wage and Hour Opinion Letter July 27, 1971 . . . (supplemental after hours reading assignments that are not supervised or tested, and are not necessary to pass the final examination are primarily for the employee’s benefit and may be excluded from compensable hours of work).”
“When completion of homework is a requirement of a compensable training class, however, time spent completing assignments for such training is compensable. Mandatory homework is addressed in Wage and Hour Opinion Letter September 9, 1970 . . . which states,
[t]he employee’s participation in the program, both with respect to classroom work and . . . practice at home, is not voluntary . . . if . . . attendance is required for the continuance of . . . employment and if such . . . practice at home is necessary to qualify under the program. In such a case the time spent in classroom training as well as the time devoted to . . . practice at home would be considered as compensable hours of work which the employer may not disregard in determining the employee’s compensation.
“Therefore, the time spent outside the classroom and after normal work hours completing required assignments, such as the required reading and studying of materials that [are] describe[d], is compensable hours worked.” Nonetheless, the employer could “establish a specific amount of time to be spent completing assignments outside the classroom and after normal work hours.” The DOL “noted in 29 C.F.R. § 785.13:
[I]t is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.
“If employees spend more time completing the assignment than allowed by the city, the time may be compensable. See 29 C.F.R. § 785.12. 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. See Wage and Hour Opinion Letter September 27, 1984 .” In other words, the employer must do more than promulgate rules or directions about the amount of study time which will be permitted; it must actively enforce that rule before it will be given weight by the DOL.
In the third letter opinion, the DOL addressed 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” FLSA. In that situation, the employer operates pre-schools and child care “facilities in several states.” “The facilities are licensed by the State and State-certified child care teachers and assistants staff the facilities.” The employer provided “in-service training or continuing education after regular business hours at day care centers in those states that require employees to take such training in order for the employees to maintain their state certification. The courses correspond to those offered by independent bona fide institutions of learning. Attendance at the training is voluntary and employees do not perform work during the training. The teachers and assistants may also attend training offered by other organizations that meet the state mandated training requirements.”
As discussed in the first two letter opinions, the DOL concluded that the employer met all of the criteria, except for criterion (c) because the training was job related. However, unlike the employer discussed in the first letter opinion, this employer fell within the exception:
With respect to criterion (c), 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. . . . . In the child care industry, [the DOL] regard[s] 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. . . . Here, the courses correspond to those offered by bona fide institutions of learning and qualify the employees to gain employment with any child care service provider.
Therefore, the DOL opined “that the time spent by employees voluntarily attending in-service training or continuing education required by the State and provided at your client’s day care center is not hours worked under the FLSA. This is true even if the State requires that individuals may only be employed by the employer if they meet the in-service or continuing education requirements, so long as the State does not require the employer to provide the training.”
Insomniacs can read these letter opinions in full at http://www.dol.gov/esa/whd/opinion/FLSA/2009/2009_01_15_13_FLSA.htm, http://http://www.dol.gov/esa/whd/opinion/FLSA/2009/2009_01_15_15_FLSA.htm.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.
