New DOL Guidance on Continuing Education Attendance
By: Dan Burke & Laura Caty
This week, the Department of Labor (DOL) issued a new opinion letter addressing whether the Fair Labor Standards Act (FLSA) requires employers to pay employees who attend ongoing continuing education (CEU’s) during normal work hours. The opinion letter hones in on the voluntary aspect of certain CEU’s, as opposed to mandated training activities an employer may require of its employees. Many employers require employees to either use paid time off or vacation time to attend voluntary continuing education classes.
As an overarching principle, the FLSA mandates that employers compensate employees for their “work”; however, “work” is a moving target in this area. The FLSA does not define “work,” but it does define “employ” as “to suffer or permit to work.” Clear as mud, right? Certain CEU’s constitute “work” if attended during normal work hours. This is true even if the CEU is not mandated by the employer and even if the CEU is not directly related to the employee’s job.
In an effort to provide clarity, the DOL provides that the regulations do not require employers to count “attendance at lectures, meetings, training programs and similar activities” as work if all four of these 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.
If all four criteria are met, an employer is not required to pay the employee for their “work,” although, in many situations, the employer will have previously approved and paid for the training session. Two special scenarios are also not considered “working time”: (1) where an employee attends an independent bona fide institution of learning because the employer provides the opportunity as a benefit (even if paid for and related to their job); and (2) where an employee independently enrolls in and takes a college course, or other school program, even if it relates to their job. For example, if an employee enrolls in an MBA program at night, it is not considered “time worked” under the FLSA. That is true even if the degree would improve their chances of a promotion.
The DOL considered six common scenarios in which employees attended seminars either virtually or in person. In each scenario, the employee is voluntarily using education funds and is not performing any productive work while attending. The following two factors will lean toward non-compensable time:
- Whether the employee viewed the CEU outside of normal work hours – i.e., when did her ‘attendance’ actually occur?
- If the education funds are used for webinars/seminars that do not qualify for a CEU, the more that it is similar to a program offered by an independent bona fide institution, the less likely it is paid time.
To prevent employees from using their regular work hours to view on-demand webinars and, thus, turning training time into paid time, the DOL advises employers to establish a policy which prohibits webinar viewing during work hours. Even if a training webinar is unrelated to an employee’s job, its viewing may still qualify as work hours and, therefore, would be compensable under the FLSA.
While the intent of the DOL’s opinion letter was to provide clarity, it leaves as many questions as answers. The key takeaway is that wage payment issues are very fact-specific. When in doubt, give us a call. We’re here to help!