Is Time Attending Voluntary Training Programs Compensable? The DOL Weighs In

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In November 2020, the Department of Labor’s Wage and Hour Division issued several opinion letters under the Fair Labor Standards Act, of which one addressed the compensability of time spent by non-exempt employees attending voluntary training programs. Opinion letters respond to a wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters for guidance.

Under the FLSA’s implementing regulations, “[a]ttendance at lectures, meetings, training programs and similar activities” do not constitute compensable working time if the following four criteria are met:

  1. Attendance is outside of the employee’s regular working hours;
  2. Attendance is in fact voluntary;
  3. The course, lecture, or meeting is not directly related to the employee’s job; and
  4. The employee does not perform any productive work during such attendance.

The regulations also recognize two situations in which training time may be excluded from working time, even if the training is related to the non-exempt employee’s job. The first is when an employer establishes an educational program that corresponds to courses offered by independent institutions of learning, and the employee voluntarily attends the program during non-working hours. The second is when “an employee on his or her own initiative attends an independent school, college or independent trade school after hours.”

The WHD then applied these principles to six scenarios:

  • A webinar that is directly related to the employee’s job and provides continuing education (CE) credits towards the employee’s professional license, which the employee chooses to view outside her scheduled work hours. The WHD found this time to be non-compensable, as it corresponds to courses offered by independent bona fide institutions of learning. The DOL said the fact that the employee could have viewed the webinar during work time was “immaterial”; it only matters when the training actually occurred.
  • A webinar that is directly related to the employee’s job, but does not provide CE credits, which the employee chooses to view outside his scheduled work hours. The WHD acknowledged that such webinars could be non-compensable, even without a CE component, if they correspond to courses offered by an independent bona fide institution of learning. The WHD stated that it will consider such correspondence to exist if, for example, “[t]he course content, like that of other instruction in bona fide institutions of learning, [is] not tailored to any peculiar requirements of a particular employer or of a particular job held by an individual employee and is such that the skill or knowledge imparted through training would enable an individual to gain or continue employment with any employer.”
  • A webinar that is directly related to the employee’s job, but does not provide CE credits, which the employee chooses to view during his scheduled work hours. According to the WHD, this is compensable because “[e]mployee participation during regular work hours in a training program that directly relates to the employee’s job is work time for FLSA purposes.” This is the case regardless of whether it could have been viewed during non-work hours. The employer therefore cannot require employees to use paid leave to cover the training time, but WHD offers that employers can prohibit such viewing during scheduled work hours, in order to avoid paying for such time.
  • A webinar that is not directly related to the employee’s job and does not provide CE credits, which the employee chooses to view during his scheduled work hours. As with the last example, the WHD states that this is compensable time because it occurs during the employee’s regular work hours. Again, however, employers can prohibit such viewing during scheduled work hours.
  • A webinar that is not directly related to the employee’s job, but provides CE credits, which the employees choose to view during her scheduled work hours. Again, any training that occurs during work hours is compensable time, regardless of what the training is. And, again, employers can prohibit such viewing during scheduled work hours.
  • An in-person, out-of-town weekend conference, where some but not all topics relate to the employee’s job and CE credits are available, which the employee voluntarily chooses to attend and during which she does not perform any productive work. The WHD found this to be a special situation that does not count as hours worked since her attendance is voluntary, occurs outside regular working hours, and corresponds to courses offered by an independent bona fide institution of learning. And because the attendance is not work time, any time spent traveling to the conference is non-compensable personal travel time.