The US Department of Labor (DOL) has made it clear in a recent statement when the time spent completing training requirements must be remunerated under the Fair Labor Standards Act (FLSA).
In a separate report, the DOL explained when the travel time of foremen and workers who are not released can be taken into account.
A key message from the initial response letter is that if an employer allows an employee to complete training requirements during normal working hours, time under the FLSA will count, said James Coleman, attorney at Constangy, Brooks, Smith & Prophete in Fairfax, Virginia.
“Employers should pay their employees to study during regular working hours, or they should have a clear written policy prohibiting employees from attending such training during their regular working hours,” said Susan Harthill, attorney at Morgan Lewis in Washington , DC
“Employers must carefully consider the content of the training – that is, whether it relates directly to the employee’s position, when it is offered, and whether such participation is voluntary,” said Jeffrey Ruzal, attorney at Epstein Becker Green in New York City . “These criteria determine whether such further training is to be treated as creditable working time.”
Six hypotheses
In FLSA 2020-15, the employer asked DOL for guidance on the adequacy of employee training in six hypothetical cases where participation in the training programs is voluntary. Here are the scenarios and the DOL’s answers.
1. A nurse uses her employer-provided tuition to provide training related to her job outside of working hours, although she can watch the on-demand webinar at any time. Is it permissible to treat this as unpaid time?
Yes.
2. An accountant uses his education funds for a webinar that is directly related to his job but does not contain any training component. Although he could watch it anytime, he does so outside of opening hours. Is it permissible to treat this as unpaid time?
The DOL said there was not enough information to determine if the agent’s time to watch the webinar counts as working time for FLSA purposes. Should additional facts show that the webinar is equivalent to courses from independent, bona fide educational institutions, the time spent viewing the webinar may not be considered eligible.
3. An accountant uses his education funds on a webinar that is directly related to his job but does not have a training component. Although he can see it at any time, he does so during working hours. Can the employer ask him to replace the time he spent attending the webinar with paid time off?
No. The employee’s participation in a training program directly related to the employee’s job during regular working hours is working time for FLSA purposes. However, the DOL added that the employer could set a policy prohibiting such viewing during regular working hours.
4. An accountant uses his education funds for a webinar that is not directly related to his job and has no training component. Although he can see it at any time, he does so during working hours. Is it permissible to require him to replace the time he spent attending the webinar with paid time off?
No. Even if the webinar is not directly related to the work of the clerk, the viewing time is considered working time for FLSA purposes if the clerk watches the webinar during normal working hours. However, the employer could set a policy prohibiting such viewing during regular working hours.
5. A nurse uses her education funds on a webinar that is not directly related to her job but has training units that may meet her licensing requirements. Although she can see it at any time, she does so during regular working hours. Is it permissible to require them to replace the time they spent attending the webinar with paid time off?
No. The viewing time would count as working time according to the FLSA. However, the employer could set a policy prohibiting such viewing during regular working hours.
6. A nurse spends her education funds on a weekend in-person conference that covers several topics, some of which are directly related to her job. Further training units are available. She has to travel out of town to attend. Both the trip and the conference will be canceled during normal working hours, but the actual conference will take place on days when she is not normally working. Does she have to be paid for her travel or training time?
No, as long as her participation in the training is voluntary and she does not do any work during the trip.
The letter of opinion provides that employers can prohibit employees from attending courses during working hours, stressed Coleman. However, an employer might consider allowing time during working hours to attend a course to meet continuing education requirements if the course is related to the worker’s job, he added.
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Travel time of non-exempt foremen and workers
In FLSA 2020-16, the DOL considered three scenarios in which it was a question of whether the travel time can be remunerated by foremen and workers who were not exempted.
In the first scenario, the construction site is local. Each foreman picks up a company truck from the employer’s headquarters in the morning, drives it to the site and brings it back at the end of the day. Workers can choose to go straight to the construction site or to head to the main office and then drive to the construction site with the foremen.
In the second scenario, the place of work is between one and a half and four hours’ drive from the employer’s main office. The employer pays the hotel room night for those who work on site and a meal allowance. Each foreman picks up a company truck from the main office at the beginning of the assignment, drives it to the deployment site and brings it back at the end of the assignment. Workers are required to drive their personal vehicle to and from the remote construction site at the beginning and at the end of the job, although some may wish to drive their personal vehicles to the main place of business of the employer and drive to and from the construction site with the foremen.
In the third scenario, the facts are the same as in the second, except that workers choose to travel between the remote construction site and their home every day instead of staying at the hotel.
The DOL announced that the foremen’s travel time between the employer’s main office and the construction sites can be taken into account in every scenario.
In the first scenario, the workers’ travel time cannot be compensated.
In scenario two, the time of workers who start work with their own vehicle to the remote construction site and end work is acceptable if their trip exceeds normal working hours, even if they were on a different route otherwise no working day, said the DOL. The trip from the hotel to the place of use would be non-refundable. If the employer offers the workers the opportunity to drive to the remote work site with the foremen in the company vehicles, the employer can choose whether to use either the time incurred while driving the company vehicles or the time the workers actually take to work Time worked offsets the trip to the remote workplace.
In scenario three, the workers’ journeys to and from the construction site at the beginning and at the end of the work would be treated in the same way as in the second scenario. The intermittent journeys by the workers home and back to the remote construction site could not be compensated, which Coleman described as the “most remarkable” part of this report.
