On November 3, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued opinion letter FLSA2020-15 regarding compensation under the Fair Labor Standards Act (FLSA) for time employees spend attending voluntary training programs such as outside, ongoing continuing education classes (CEUs). The employer at issue is a non-profit hospice care provider with clinical staff such as nurses, social workers, health aids and providers, all of whom have ongoing continuing education requirements for their profession’s licensing. However, the employer does not require certain classes be attended; attendance is always voluntary. Yet, if an employee wants to maintain his/her license, they need to keep up on their CEUs. The employer provides each employee funds to use for CEUs, though they do not need to use the CEU Funds.
The DOL explains that there are 4 factors to consider whether training programs and other similar activities count as working time. It is not “work time” if:
- Attendance is outside of the employee’s regular working hours;
- Attendance is voluntary;
- The course, lecture, or meeting is not directly related to the employee’s job; and
- The employee does not perform any productive work during such attendance.
There are two exceptions where training may not count as work time even though it directly relates to the employee’s job: (1) an employer established program that corresponds to independent programs; and (2) where an employee attends an independent school, college, or trade school after hours on their own initiative. The DOL then addresses six detailed hypothetical situations to further clarify the above, largely related to on-demand viewing of webinars. If you find yourself analyzing the compensability of online training, you may find some further guidance there.