The U.S. Department of Labor has issued additional guidance (FLSA2020-15) (November 3, 2020) regarding the compensability of time that employees spend attending voluntary training programs in various factual scenarios under the Fair Labor Standards Act (FLSA). The Guidance addresses the issue in the context of six hypothetical scenarios.
Generally, the FLSA requires employers to compensate employees for their “work”, but does not define “work.” As the Guidance notes, the Supreme Court has determined that the compensability of an employee’s time depends on whether it is spent “predominantly for the employer’s benefit or for the employee’s.”
Generally, the regulations provide:
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.
29 C.F.R. § 785.27.
However, the Guidance notes two situations where training time may be excluded from an employee’s job.
First, “if an employee on his own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for his employer even if the courses are related to his job.” 29 C.F.R. § 785.30.
Second, “[t]here are some special situations where the time spent in attending lectures, training sessions and courses of instruction is not regarded as hours worked. 29 C.F.R. § 785.31. 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. Id. 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. Id.