Often, questions from clients provide the opportunity for a new blog post. Recently, I was asked whether a client was required to pay employees who attended voluntary, after-hours training. Most people would think that voluntary training is just that: voluntary. Surely, you don’t have to pay for something that is voluntary, right? Unfortunately, the answer is not so simple. In fact, the general rule for most employers is: If the training directly relates to the employee’s job, the employer must pay for the time spent in training — even if attendance is voluntary.
The Fair Labor Standards Act requires that employees receive compensation for their work time. And, in many circumstances, training time is work time. The FLSA’s implementing regulations provide that time spent at lectures, meetings, training programs and similar activities is not work time if 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. In most circumstances, an employer wants an employee to attend training to benefit the job. As result, most employee training must be compensated (even if “voluntary”) because it will be “directly related to the employee’s job.”
But, there are always exceptions. And, in this case, the regulations recognize “special situations” where voluntary training is not compensable even if it directly relates to the employee’s job:
There are some special situations where 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.
29 C.F.R. § 785.31.
That regulation is clear as mud. Fortunately, the Wage and Hour Division of the United States Department of Labor provided some clarification last year. In Opinion Letter FLSA2020-15, WHD addressed six hypothetical scenarios focused on voluntary training and “special situations.” Here is a link to the letter: FLSA2020-15. Most significantly, WHD found that a nurse who enrolled in a webinar directly related to her job, but who viewed the webinar in her off-work time, would not be entitled to compensation under the FLSA.
In summary, employers generally must pay for time spent in training that is directly related to an employee’s job. But, employers may be excused from payment if “special situations” occur.