Should employers pay when employee attends voluntary training program?

The answer may surprise you. In a recent opinion letter on November 3, 2020, the Department of Labor discusses this very issue under six (6) fact scenarios presented by an employer that is a non-profit hospice care provider. In the scenario, the employer has employees that include a clinical staff of nurses, social workers, health aides and providers. Many of these individuals have ongoing continuing education requirements (CEU) that are mandated by their respective professions’ licensing requirements. There is also some employees outside this group that do not have any ongoing continuing education requirements.

Employer provided funds to each full and part-time employee for continuing education (“CEU Funds”) and the amount of funds was determined by status (full or part-time) and position (leadership, provider, and all other staff) and is the same for all employees sharing the same status and position. The way this Employer had handled this continuing education or CEU Fund was that employees were not required to use the CEU funds or attend any particular class and attendance is always voluntary. In particular, the DOL notes in the opinion letter that the employees gain no work-related benefit from attending a continuing education class nor do they incur any penalty as these are distinguishable from in house training that an employer would require to be mandatory.

The Employer’s policy was to count as work time any training that was mandated or required to attend but with voluntary continuing education training the employee’s were required to substitute paid time off or vacation if attendance is during normal working hours. If the training occurs after hours, no compensation was provided to the employees.

After recognizing the general lay out of how the Employer was handling the voluntary training program attendance, the DOL turns to discuss the motivation of why employees are requesting to participate in this continued learning and that CEU funding requests are generally but not always motivated by a desire to maintain a professional license where the training may or may not “directly relate to an employee’s job.” Sometimes the request is training that does relate directly to the employee’s job but they also are fulfilling a CEU requirement.

The DOL then goes onto to discuss six (6) different employee scenarios after recognizing that the FLSA does not specifically define “work” but that “employ” includes “to suffer or permit to work.” The U.S. Supreme Court in Armour & Company v. Wantock has determined that the compensability of an employee’s time depends on “[w]hether [it] is spent predominantly for the employer’s benefit or for the employee’s.”

So how does that work with a voluntary program? Doesn’t it benefit both the employee and the employer but if it is not required by the employer then does the employee get to claim this as compensable time they should be paid for? Mixed analysis based on the six scenarios below where I give a very abbreviated summary:

Scenario #1 - NOT WORK TIME UNDER FLSA

Nurse W submits a request, which is approved, to use her education funds for an on-demand webinar directly related to her job and also has CEUs that can go towards her licensing [continuing education] requirement. Although she could view it anytime, she decides to do so on her off-work time. Is it permissible to treat this as unpaid time?

Yes, even though job related, the DOL states that because she watched it outside of regular work hours it would not be compensable.

Scenario #2 - NOT ENOUGH INFO TO DETERMINE PER THE DOL

Scenario #3 - EMPLOYER SHOULD COUNT AS WORK TIME UNDER FLSA

Accounting Clerk M submits a request, which is approved, to use his education funds for an on-demand webinar directly related to his job, but has no continuing education component. Although he could view it any time, he does so during his work hours. Is it permissible to require him to substitute [paid time off] for the time spent watching the webinar?

The DOL states, “Employee participation during regular work hours in a training program that directly relates to the employee’s job is work time for FLSA purposes.”

Scenario #4 - EMPLOYER SHOULD COUNT AS WORK TIME UNDER FLSA

Accounting Clerk O submits a request, which is approved, to use his education funds for an on-demand webinar that is not directly related to his job and has no [continuing education] component. Although he could view it any time, he does so during his work hours. Is it permissible to require him to substitute [paid time off] for the time spent watching the webinar?

The DOL states, “Even though the webinar is not directly related to the clerk’s job, the viewing time would qualify as work time for FLSA purposes because the clerk views the webinar during his regular work hours.”

Scenario #5 - EMPLOYER SHOULD COUNT AS WORK TIME UNDER FLSA

Nurse X submits a request, which is approved, to use her education funds for an on-demand webinar that isn’t directly related to her job, but as CEUs that can go towards her licensing [continuing education] requirement. Although she could view it any time, she chooses to do so during her regular work hours. Is it permissible to require her to substitute [paid time off] for the time spent watching the webinar?

The DOL states, “As with the on-demand webinar discussed in the fourth scenario, the nurse’s viewing time would qualify as work time for FLSA purposes because the nurse views the webinar during her regular work hours.”

Scenario #6 - NOT WORK TIME UNDER FLSA

Nurse Y submits a request, which is approved, to use her education funds for an in-person, weekend conference that covers several topics, some of which directly related to her job, but others don’t. CEUs are available. She has to travel out of town to attend. Both the travel and the conference cut across her normal work hours, but the actual conference occurs on days she does not normally work. Does she have to be paid? If so, can we require her to substitute [paid time off] for the time spent traveling and attending?

The DOL states, “The nurse described in this scenario does not have to be compensated for any travel or training time, provided - as you have asked us to assume - that her participation in the training is voluntary and she does not perform any productive work during the trip.” The DOL states this “need not count as hours worked, because the training is voluntary, occurs outside of the nurse’s regular working hours, and appears to correspond to courses offered by independent bona fide institutions of learning.”

In most of the scenarios above, one of the key parts of the DOL’s analysis hinged on that the employee did the training during the employee’s regular work hours thereby qualifying it as “work time for FLSA purposes.” The DOL repeatedly states an Employer “may establish a policy prohibiting such viewing during regular work hours.” If employers aren’t already thinking it, the DOL is openly hinting that your policies maybe key on this subject. In certain circumstances stating if you do not have the right policy you lose if you were arguing voluntary training programs are not “work time” under the FLSA.

Remember the DOL is always careful to caution that their opinion letters are based exclusively on the facts presented as well as some other disclaimers. The DOL analysis goes into more detail then my summary above, so if you want to check out the full opinion letter and analysis by the DOL, click here.