Must an employer pay its employee wages for after-hours time spent attending training? Yes, under some circumstances, according to the U.S. Department of Labor and California’s Division of Labor Standards Enforcement.
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U.S. Department of Labor Update
DOL Wage and Hour Opinion Letter:
Time Spent After Hours
In Online Training Must Be Paid
By Christopher W. Olmsted
Must an employer pay its employee wages for after-hours time spent attending training? Yes, under some circumstances, according to the U.S. Department of Labor and California’s Division of Labor Standards Enforcement.
The U.S. Department of Labor recently published an opinion letter wherein it considered this rule in the context of online internet/web training courses.
General Rule:
The U.S Department of Labor’s regulations provide that certain training activities need not be treated as hours worked. California’s Division of Labor Standards Enforcement (DLSE) has adopted these regulations. One section of the federal regulations states: “training programs and similar activities need not be counted as 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 (attendance is not voluntary if the employee is led to believe that present working conditions or the continuation of employment would be adversely affected by nonattendance);
3) The course, lecture, or meeting is not directly related to the employee’s job (training is directly related to an 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); and
4) The employee does not perform any productive work during such attendance.
Exception to third criteria: Even if the training is clearly related to an employee’s job, voluntary participation outside of working hours need not be compensated if the course corresponds to courses offered by independent bona fide institutions of learning
If all four criteria are not met, then the employer must compensate the employees for their training time.
Application of the Rule to Online Training: Recent DOL Opinion Letter
In the recent DOL opinion letter published earlier this year, the agency considered the following scenario:
A communications company employs technicians who install and service voice and data communications circuits. The technicians’ duties include working with a networking system manufactured by Tellabs.
Tellabs offers advanced training in the Tellabs equipment. The classes are voluntary and the company will pay for time spent in class. However, Tellabs requires that technicians taking the training class must first complete ten hours of web-based prerequisite classes. It is expected that the technicians will take the prerequisite classes on their own time at their homes.
Issue: Is the Company legally obliged to compensate employees for the time they spend outside of normal working hours at their own home completing the required prerequisite classes prior to taking the voluntary Tellabs training class?
Answer: Yes. The prerequisite classes meet criteria (1), (2), and (4). Criterion (3), however, is not met because the prerequisite classes are directly related to the technicians’ jobs. The regulation provides that “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.” The training classes and the prerequisite classes offer instruction to enable the technicians to perform their present jobs better by giving them greater abilities to use a network system they are presently using. By making the technicians better able to perform their jobs, the training and the prerequisite classes are directly related to the technicians’ jobs.
The exception to the third criterion (if the course is the same as offered by a third party institution of learning) does not apply because these are specialized courses offered by Tellabs, and not a school or college.
The bottom line: The employer must pay the workers for the time spent at home taking the on-line prerequisites.
Please contact Chris Olmsted if you need help determining whether your employees’ training should be paid or unpaid.
More Legal Update articles.
Download entire May 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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