In three opinion letters issued during the final weeks of the Bush administration, the Wage and Hour Division of the U.S. Department of Labor (DOL) provided further guidance as to what does and does not constitute compensable training time under 29 C.F.R. § 785.27.

Pursuant to section 785.27, participation in training programs need not be counted as working time if 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. 29 C.F.R. §785.27.

In FLSA 2009-13 and FLSA 2009-15, the DOL confirmed that required study for required training classes – even when the studying occurs outside of the normal work day – is nonetheless compensable time. In 2009-13, employees were required to take four 10-hour web-based prerequisite classes for a job-related training course that would be completed during normal work time. While participation in the job-related training course was entirely voluntary, completion of the course would result in the employees being able to better and more efficiently perform the functions of their jobs. Accordingly, because their web-based requisite classes were a mandatory part of the job-related training course, the DOL concluded that time spent completing those web-based prerequisite classes was directly related to the employee’s job and, therefore, failed the third criterion of section 785.27.

Similarly, in 2009-15, the Department of Labor concluded that required study time for required training seminars – even though performed outside of the regular work day – also was compensable. The DOL reasoned that, because the training course was mandatory and, in order to pass the training course the employee was required to study, the study time was compensable.

In another decision, FLSA 2009-1, the DOL found that time spent by childcare employees in state-mandated training programs offered by the employer and required by the employer as a condition of maintaining the employee’s state certificate, was not hours worked under the FLSA. This opinion turned on an important exception to the requirement that the training not be directly related to the employee’s job. As the DOL recognized, where the training is for the benefit of the employee and corresponds to courses offered by independent bona fide institutions of learning, voluntary attendance by the employee outside normal working hours is not hours worked even though the training is clearly related to the employee’s job. In this case, the DOL found that the employees were not required to take the employer’s particular training class so long as they take a class to keep up their state certification. Accordingly, while the state certification was mandatory, the particular training was not. The DOL wrote that childcare training is for the benefit of the employees when it provides instruction of general applicability that enables an individual to gain or continue employment with any childcare service provider.

This entry was authored by Bradley Sherman.