Q&A: When is employee training time paid under the FLSA?
Quick answer: Under the FLSA, time spent in training programs is compensable work time unless all four regulatory criteria are met: attendance is outside regular working hours, attendance is voluntary, the training is not directly related to the employee’s job, and no productive work is performed during it. In the scenario below, the employer must pay.
The question
If an employer sends employees to Supervisor School for their construction industry—should this time be paid?
The employees asked to go to Supervisor School, and the employer is paying for the school and travel/lodging. The training is related to the job and would allow the employees to advance within the company.
The answer
As a general rule, the federal Fair Labor Standards Act (FLSA) requires employers to pay workers for any hours in which they are “suffered” or “permitted” to work. In addition to the employee’s principal work activities, what constitutes “work time” can also include a broad array of work-related activities such as waiting time, on-call time, certain rest and meal periods, etc.
Training programs conducted during regular working hours constitute work time and must be compensated as such, according to the Fair Labor Standards Act (FLSA).
An employee must be paid for any time he or she spends attending training programs, meetings, and other similar activities unless all four criteria are met:
- Attendance occurs outside the employee’s regular working hours;
- Attendance is voluntary;
- The training or meeting is not directly related to the employee’s job, and
- The employee does not perform productive work while attending the training or meeting (29 C.F.R. §785.27)
When is training outside regular working hours?
Determining if attendance occurs “outside the employee’s regular working hours” is simple when an employee works on a regular, recurring work schedule. For example, if an employee works a 9 a.m. to 5 p.m., Monday to Friday workweek and a training session is held on a Saturday, attendance is outside the employee’s regular working hours. If the training is held at 1 p.m. on a Wednesday, it is not. But what about an employee whose schedule varies significantly? The statute, the regulations, and case law are silent on this question. In these situations, employers may simply err on the side of caution and pay the employee for his or her time. Otherwise, employers should take care to have a sound basis for claiming that a training session or meeting occurs outside the employee’s regular working hours and document it clearly.
When is attendance truly voluntary?
Attendance must be voluntary to avoid paying employees for time spent attending a training program or a meeting. Requiring an employee to complete a training program or a course of study for a promotion doesn’t necessarily make attendance involuntary. But if an employer leads its employees to believe that their present working conditions or the continuance of their employment would be affected by failing to attend, the training program or meeting would be compensable working time. (29 C.F.R. §785.28)
When is training directly related to the employee’s job?
If a training program or meeting is “directly related to the employee’s job,” he or she must be paid for the time spent attending it. A training program or meeting is “directly related to the employee’s job” if it is “designed to make the employee handle his job more effectively” (29 C.F.R. §785.29). For example, that time spent by technicians at home taking Web-based prerequisite classes for a training class was compensable even though the training class was voluntary because the prerequisite classes were directly related to the employees’ jobs and helped them do their work more effectively.
On the other hand, if the purpose of the training program or meeting is to train the employee for another job or to teach him or her an additional skill—such as a stenographer who attends a course in bookkeeping—it may not be directly related to the employee’s job (29 C.F.R. §785.29).
If a training program does not involve the acquisition or development of a new skill—but rather the maintenance of existing skills—it may not be directly related to the employee’s job. Similarly, if the training provides “benefits that extend beyond [employees’] employment position”—such as physical fitness training that helps police officers perform their job duties but also improves their health—the training may not be directly related. If the purpose of the training program is to help upgrade the employee’s skills in preparation for a promotion or other advance and is not intended to make the employee more efficient in his or her present job, the training will not be considered directly related to the employee’s job even if the training happens to improve the employee’s skills in his or her current position (29 C.F.R. §785.29). For example, a federal appeals court held that an electric meterman was not entitled to compensation for time spent in training on new equipment that was not necessary for his current job and was intended to make him eligible for a higher salary (Price v. Tampa Elec. Co., 806 F.2d 1551 (11th Cir. 1987)).
The bottom line
Accordingly, unless all 4 criteria are met, this employer will need to compensate these employees for time spent in Supervisor School.
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