NEW DOL Opinion Letter Addressing Voluntary Training Programs
By Kevin M. Mosher • Nov 5, 2020
The Department of Labor’s Wage and Hour Division recently issued an opinion letter addressing the compensability of time spent participating in voluntary training programs. Specifically, the letter addresses whether employers must pay employees for time spent attending continuing education training necessary to maintain professional licenses.
Generally, trainings and similar activities aren’t counted as compensable working time if they occur outside of the employee’s regular working hours, attendance is voluntary, the training isn’t directly related to the employee’s job, and the employee doesn’t perform any productive work during the training.
Exceptions to the Rule
There are some exceptions to the normal legal rules. For example, if the employer establishes a training program for the benefit of its employees that is comparable to courses offered by independent bona fide institutions of learning, and attendance at such courses is completely voluntary and outside of normal working hours, the time spend attending such trainings is still not compensable work time, even if it is directly related to the employees’ jobs. Similarly, if an employee independently and voluntarily decides to attend an independent school, college, or trade school outside of working hours that is directly related to their job, that is not considered time worked.
Examples of Employees Attending Trainings That Is Not Compensable
A nurse views an on-demand webinar which is directly related to her job to fulfill her continuing education requirements for her nursing license outside of working hours.
WHY: This time is not compensable because it would seem to correspond to courses offered by independent bona fide institutions and the attendance was voluntary and outside of working hours. It is immaterial that the nurse could have attended the webinar during her working hours.
A nurse submits a request for her employer to sponsor her attendance at an out-of-town conference over the weekend, which is approved. She will be missing work to travel to and from the conference, but the conference is actually occurring outside of her normal working hours. Some of the seminars offered at the conference directly apply to her job, and others do not. She will receive credits towards her nursing license.
WHY: This time is not compensable because it occurs outside of normal working hours, attendance is voluntary, and appears to correspond with courses offered by independent bona fide institutions of learning. Because the time spent at the conference is not compensable, the time spent traveling, even though it occurs during normal working hours, is also not compensable.
An accounting clerk submits a request, which is approved, for his employer to sponsor his attendance at an on-demand webinar directly related to his job, and he views the on-demand webinar during working hours. The course does not count towards any continuing education for his professional license.
WHY: This comes back to the principal that “work not requested but suffered or permitted is work time.” Since the employee viewed the webinar during working time and it’s directly related to his job, this time is compensable.
A nurse submits a request, which is approved, for her employer to fund her attendance at an on-demand webinar that can go towards her continuing education requirement for her license. The nurse views it during her regular working hours.
WHY: The viewing occurred during normal working hours.
If you don’t want to pay employees for attending voluntary trainings during working hours, consider developing a policy prohibiting such behavior or requiring prior approval. Though you will still need to pay employees even if they violate this policy, it will give you grounds to discipline or terminate the employee for doing so.
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