DOL: Workers taking online training course at home must be paid

The Department of Labor published a new opinion letter, giving some guidance on whether employees need to be paid for time they spend taking online training courses at home.

An employer asked the DOL about this situation:

Employees are offered an optional training course on a computer application they use to do their work. Everyone is already trained on the basics and has enough skills to perform their duties. But the optional course provides advanced knowledge, which lets them work more efficiently.

The training includes online courses employees are expected to take at home on their own time. Most of the employees taking the course are nonexempt — do they need to be paid for what they do at home?

The DOL’s answer: Yes.

Time spent attending training doesn’t have to be paid if all of these criteria are met:

  • the training occurs outside the employee’s normal working hours
  • attendance is voluntary
  • the information learned is not directly related to an employee’s job, and
  • the employee doesn’t do any work during the session.

In this example, the training was directly related to how employees did their jobs — it helped them perform their work more easily — so the time had to be paid.

Comments

  1. This is a little vague. I’d be interested in specifically in what these employees did and what kind of training they were offered. On the surface, it seems odd that the training was voluntary and they were still required to be paid.

  2. According to DOL regulations a person cannot volunteer to work at an assignment that the employer expects the employee to accomplish. (Suffered to work is the expression.)

    “The training includes online courses employees are EXPECTED to take at home on their own time.”

    Without knowing any other detail this would be the key to rather the employee should be compensated or not.

  3. What if the employee is exempt and the online training is “sales training” to enhance their performance as a salesman? The training is required by the comapny and the only time available to take the online training is in the evening outside of regular working hours. Does the company not have to offer some kind of compensation?

  4. Where is link for this opinion letter? I can only find the old one about time recording from feb. 2008.

  5. Gretchen says:

    The information provided is conflicting: it first indicates the training is “optional.” Then it indicates it employees are “expected” to complete it. I don’t think it can be both.

  6. I am glad to see this being discussed. I work at a bank and several times a year we have manditory training after hours. We are told we will NOT BE PAID for our attendance. I have thought this was wrong, most of us are not salary. This causes a strain on some employees because we have to find additional childcare to attend w/o pay.

  7. If an employee is “expected” to maintain licensure or certification to continue employment, and that licensure/ certification requires attending so many classes or CEU’s each year, is the employer NOW required to pay the employee for the time they spend attending these classes?

    I know that many Chemical Dependency counselors and teachers in Ohio that would like this to be so. However, there is a catch, then. If the person with licensure/ certification works at more than one establishment throughout the year (sometimes at the same time), how would these required training hours be recorded/charged to the various employers who require that licensure/ certification. What if the person also uses their license/certification as an independent contractor? Would these need to be considered for overtime considerations? If so, does the employer have any say as to WHEN the employee can take these courses? For courses done at home and online, how does the employer track the hours worked when the employee may work on these courses at odd hours and there is no “log” provided of hours worked? Finally, just because someone is “logged” on, doesn’t mean they are working.

    Inquiring minds would like to know.

  8. Janet Says:

    March 31st, 2009 at 1:45 pm
    I am glad to see this being discussed. I work at a bank and several times a year we have manditory training after hours. We are told we will NOT BE PAID for our attendance. I have thought this was wrong, most of us are not salary. This causes a strain on some employees because we have to find additional childcare to attend w/o pay.
    ___________________________________

    Are you an exempt employee? If so then you actually are being paid. On the other hand not all salaried people are exempt. Exempt is not based on a job title it is based on the FLSA test that qualifies an exempt status. Non-exempt employees would be the easiest definition to understand for working off the clock. Finally training programs, lectures, and meetings that are a required function to attend are an FLSA required pay function.

    You guys could sue and have compensation reviewed for up to the five previous years.

  9. mike R Says:
    March 31st, 2009 at 4:55 pm
    If an employee is “expected” to maintain licensure or certification to continue employment, and that licensure/ certification requires attending so many classes or CEU’s each year, is the employer NOW required to pay the employee for the time they spend attending these classes?
    ____________________________________________________

    Depends on different factors. If a cert or licensure was earned on the job as an ancillary part of the job then yes recerting could be compensable. On the other hand if having the certs or licensures were a pre-condition of employment then the answer would be no.

    Mike
    If the person with licensure/ certification works at more than one establishment throughout the year (sometimes at the same time), how would these required training hours be recorded/charged to the various employers who require that licensure/ certification.
    _______________________________________________________
    Again that would depend on the requirement for haing the certifications. Working at multiple agencys does not necessarily create a ‘divy up’ situation. That would be the difference between equity (one for one) or fairness (not all is equal but things can be fair). Each job would have to be understood in its relevant requirement of certifications.

    Mike
    What if the person also uses their license/certification as an independent contractor?
    _________________________________________________________________
    Independent contractors are under a different definition under FLSA. This would not be a problem or require compensation for recert.

    Mike
    Would these need to be considered for overtime considerations?
    _________________________________________________________________
    Some would some would not.

    Mike
    If so, does the employer have any say as to WHEN the employee can take these courses?
    ______________________________________________________________
    Yes the employer can set the time with in reason of when the courses will take place as long as the employee is not working off the clock.

    Mike
    For courses done at home and online, how does the employer track the hours worked when the employee may work on these courses at odd hours and there is no “log” provided of hours worked?
    ______________________________________________________________________________
    Then time keeping will have to be done by the employee and accepted by the employer. It is the employer that has set this set of circumstances in motion knowing they do not have a ‘company’ method of keeping time.

    Mike
    Finally, just because someone is “logged” on, doesn’t mean they are working.
    __________________________________________________________
    True. That must be conveyed to the employee that is being compelled to work. Either way people cannot be allowed to ‘suffer to work’ off of the clock. Of course there is much more to this issue than can be explained on this thread, but this is the gist of it.

  10. John: Your responses appear authorative and professional. However, I do need further clarification.

    You state: “Depends on different factors.”
    Are these the four factors listed in the DOL opinion letter above, or are there still even MORE factors?

    You state: “If a cert or licensure was earned on the job as an ancillary part of the job then yes recerting could be compensable. On the other hand if having the certs or licensures were a pre-condition of employment then the answer would be no.”
    I am unaware of this distinction in the FLSA. Can you site where I can find this?

    You state: “Working at multiple agencys does not necessarily create a ‘divy up’ situation.”
    So if an employee must have CPR certification for employment, and works for three employers who require it. All three employers would have to pay the employee work wages for the four hours to get the certification? This doesn’t even remotely sound right to me.

    You state: “Independent contractors are under a different definition under FLSA. This would not be a problem or require compensation for recert.”
    Having a certification/ licensure allows a person to work as an independent contractor. My concern was related to the above situation where the employee works for three employers on a seasonal/ part time/ on call basis that require certification/licensure (which you believe each employer would have to pay for the training hours) and the individual also working full time under contract with various entities (independent contractor) and having no responsibility for their own training. More than equity, this too seems so wrong.

    You state: “Then time keeping will have to be done by the employee and accepted by the employer. It is the employer that has set this set of circumstances in motion knowing they do not have a ‘company’ method of keeping time.”
    Are there ANY circumstances that the employer can NOT ACCEPT what an employee says they worked and NOT PAY them for it? We don’t let employee’s “hang out” after work on site because they could later claim they performed work and would need to be compensated. Now that the employee can sit at home and claim they attended an online course required for their certification/ licensure it seems that the flood gates for abuse have just been opened.

  11. mike R Says:

    April 1st, 2009 at 11:42 am
    John: Your responses appear authorative and professional. However, I do need further clarification.
    _______________________________________

    Let me answer those those issues that I can get support for very quickly.

    Mike
    You state: “Then time keeping will have to be done by the employee and accepted by the employer. It is the employer that has set this set of circumstances in motion knowing they do not have a ‘company’ method of keeping time.” Are there ANY circumstances that the employer can NOT ACCEPT what an employee says they worked and NOT PAY them for it? We don’t let employee’s “hang out” after work on site because they could later claim they performed work and would need to be compensated.”
    _________________________________________

    Under 29CFR 516.2(a)(7) Employers covered by FLSA must monitor of work of nonexempt employees and maintain records of total hours worked each day. Therefore, a telecommuniting (that is now what they have become) agreement should require the telecmmuter to report hours on a daily and weekly basis. Employees may keep time cards, but computer or telephone tracking systems that generate logs are more reliable. ( Gudance from the Business and Legal Review consultants.)

    Mike
    You state: “Depends on different factors.”
    Are these the four factors listed in the DOL opinion letter above, or are there still even MORE factors?

    You state: “If a cert or licensure was earned on the job as an ancillary part of the job then yes recerting could be compensable. On the other hand if having the certs or licensures were a pre-condition of employment then the answer would be no.” I am unaware of this distinction in the FLSA. Can you site where I can find this?”
    ___________________________________

    Mike it is not an FLSA distinction so much as it is related to job requirements. Any requirement that is ancillary and is a matter of direct training to succeed beyond a probationary period, so to speak, will become an FLSA pay issue if you require that person to maintain certs that you have trained him/her in to maintain that position. Certifications that are not a requirement for that position are of personal benefit to the employee but not necessarily compensable.

    Secondly, if percertification is a requirement of the application process then you would not be paying the person for what they must have to even apply. Keeping the position would become a matter of keeping the certifications you came there with. That is an investment in your future but not necessarily compensable.

    FLSA does not require each and every varying circumstance to be compensable. FLSA addresses very little about certifications just that any work that is mainly for the benefit of the employer is. That could include donning safety gear but not changing uniforms. It does not include casual voluntary wit time if a person just happens to show up eraly, but it does include work that continues beyond the work hours.

  12. That was awful spelling I failed to run it pass spell check, sorry.

  13. Vicki:

    Exempt employees are not paid overtime, they are payed a fixed amount each pay period irregardless of the number of hours worked. “Exempt” means they are exempt from the overtime rules set forth in the FLSA.

  14. That reminds me of the time I tried to explain to a manager that if you worked 6 hours (accordign to the labor code at the time,about 10 years ago or so) that you were required to get a half hour break (which he agreed with) and that if you worked 5.5 hours,you had the option of taking a break. He claimed that it was HIS option to give you the breaks. My argument was that no matter how long I work,he can give me a break,so long as its not long enough to trigger the split shift rules. The idea that it was his option was absurd.

  15. I am unaware of a DOL requirement under the FLSA that entitles an employee to a 30 minute break if they work 6 hours. I understand that there may be some requirements under OSHA for some dangerous industries to provide such breaks, but for most positions, I have not seen this required. Of course, certain states like California have requirements that exceed the Federal requirements. I know that in my state, Ohio, it is not required.

  16. You are correct. There is no federal requirement for break time or rest breaks. But if employers allow rest breaks, those less than 20 minutes are compensable. Breaks over 20 minutes are not compensable as long as the employee is relieved of duty and not interrupted by work related issues.

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