The United States Department of Labor, Wage and Hour Division (WHD), issued several opinion letters earlier this year addressing whether various training-related activities constitute “hours worked” for non-exempt employees that are compensable under the Fair Labor Standards Act (FLSA). In order to understand the analysis in the opinion letters, it is necessary to first look at the federal regulatory framework for trainingrelated activities upon which the opinion letters are based.

FLSA Framework for Training-Related Activities

Generally, the FLSA requires that non-exempt employees be compensated for all hours worked. Regarding training-related activities, the general rule is: “Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following 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.”

The federal regulations provide further explanation regarding criterion (c), which is typically the most difficult criterion to determine: “the training is directly related to the employee’s job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill.” (29 CFR 785.29) Further, “where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee’s job even though the course incidentally improves his skill in doing his regular work.”

The federal regulations also distinguish “special situations” in which “the time spent in attending lectures, training sessions and courses of instruction is not regarded as hours worked. For example, an employer may establish for the benefit of his employees a program of instruction which corresponds to courses offered by independent bona fide institutions of learning. Voluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his job, or paid for by the employer.”

With this framework in mind, the following three opinions have been issued by the WHD:

FLSA 2009-1

A child care center offered its teachers and assistants in-service training after business hours, which qualified for the required statemandated training certification. Attendance was voluntary, as employees could meet their state-certification requirements by attending similar training at a bona fide institution of learning. So, does the in-house training count as compensable time under the FLSA?

No. WHD determined that this training did not count as hours worked, and was not compensable time under the FLSA, because it fit into the “special situations” exemption.

FLSA 2009-13

A communications company employed technicians who installed, monitored, and serviced communication circuits. The networking system used by the company was made by X Corp. The company hired X Corp. to teach a class for a small percentage of the company’s technicians. The technicians voluntarily signed up for the class on a first-come, first-served basis. The class was offered during work hours and the technicians that participated were compensated for the time spent in class. However, X Corp. required the technicians to first complete four web-based classes, each of which took approximately ten hours to complete. So, do the web-based classes count as compensable time under the FLSA?

Yes. WHD determined that the web-based classes were directly related to the employee’s job, because they were designed to make the employee handle his job more effectively. Further, WHD explained that the “special situation” exemption did not apply, because the web-based courses did not appear to correspond to courses offered by bona fide institutions of learning.

FLSA 2009-15

A city required that its employees attend and pass training programs, during normal working hours, which help them “become more proficient at their jobs.” During training, instructors told employees that they were required to read and study selected materials on their own time that would be discussed during the next class. Clearly, the time spent in the training sessions is compensable time under the FLSA, but does the out-of-class study time count as hours worked as well?

Yes. Time spent outside the classroom and after normal work hours to complete required assignments is compensable time. Since the city’s instructors required that the employees study outside of class, the time spent was not voluntary.

Conclusion

The FLSA regulations and opinion letters provide significant guidance regarding whether trainingrelated activities are compensable hours worked for non-exempt employees. However, each situation is fact specific and one training-related scenario may be different than the next. As a result, employers must carefully consider the particular circumstances of training-related activities before deciding whether employees must be compensated for time spent in or directly related to the training activity.