The U.S. Department of Labor (DOL) recently answered frequently asked questions about employee training. Chiefly, when is the time compensable? Information contained in a recent DOL opinion letter is particularly important for industries such as health care in which the need for continuing education credits is common.
The letter involved a nonprofit hospice care provider with a variety of clinical staff, all of whom need continuing education units (CEUs). The facility gives each employee an educational fund they can apply to their CEUs. It doesn’t exercise any control over which continuing education classes people attend. Choosing to attend any specific class is “always entirely voluntary.”
Employees can use the CEU fund itself to further their education, keep licensure current, and engage in similar processes. In the example, the DOL found that while the hospice care provider’s CEU fund would cover the training, the employees wouldn’t be paid for their attendance.
Mandatory Training Is Different
The CEU training highlighted in the letter is different from the training a long-term care facility mandates to keep staff in compliance. The facility must treat all such training as paid time. Needing education and being required to take specific courses are two different things.
In addressing the law, the DOL noted attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if the following four criteria are all met:
- Attendance is outside of the employee’s regular working hours;
- Attendance is voluntary;
- The course, lecture, or meeting isn’t directly related to the employee’s job; and
- The individual doesn’t perform any productive work during the attendance.
Hypothetical Scenarios
The opinion letter is fairly long with a number of hypothetical scenarios, each of which relates to voluntary training:
Voluntary training during nonwork hours. A nurse attends a voluntary training she can do at any time but chooses to do it during nonwork hours. The DOL notes the time is unpaid.
Even though the scenario relates to the nurse’s licensure and therefore her job, the agency considers it to be a “special situation.” In other words, it involves a course from an “independent bona fide institution of learning” and satisfies a professional licensure requirement.
Webinar at work. An accounting clerk submits a request for an on-demand webinar directly related to his job. He has no continuing education component and views the webinar during work hours. The DOL considers the time to be paid hours, adding, “the fact of an on-demand webinar as described in these examples as voluntary which could have been viewed outside of regular working hours is immaterial” because of the so-called suffer-or-permit-to-work standard. In other words, the employer knew it was work time and let him do it, so it was “work” and should be paid.
Practice note: If an employee completes the education during a standard shift or normal work hours, the DOL is likely to weigh the factor heavily in favor of finding the time should be paid time.
The weighting is particularly clear when an employee attends an on-demand webinar unrelated to his job responsibilities but happening during work time. The DOL considers the hours to be compensable. To address the concern, the agency suggests you establish a policy prohibiting employees from viewing on-demand webinars or any nonmandatory training during work time.
In-person, multiple-day healthcare conference. The final scenario addressed in the opinion letter is significantly different from the on-demand webinar cases. In the scenario, a nurse asks to use her education funds for an in-person weekend conference covering several topics.
Should the nurse be paid for the time spent at the multiple-day conference? Should she be paid for travel time? The DOL says the nurse wouldn’t need to be compensated for any of her travel or training time if participation is voluntary and she isn’t doing productive work. The training time itself was considered to fall under the “special situation” definition because it:
- Was voluntary;
- Occurred outside of the nurse’s regular working hours; and
- Corresponded to courses offered by independent bona fide institutions of learning.
Bottom Line
In addressing a number of the compensation issues, the key factor was whether the training (1) took place during the course of the employee’s regular workday and (2) was voluntary. It can sometimes be difficult to determine a regular workday for certain types of healthcare employees who may work flexible schedules or on-demand.
When considering whether employees should be paid for training time, remember there’s a difference between requiring training (e.g., to obtain a certain number of CEUs to maintain licensure) versus mandating specific training. The latter will typically result in compensable time.
Jo Ellen Whitney is an attorney with the Davis Brown Law Firm in Des Moines, Iowa. You can reach her at joellenwhitney@davisbrownlaw.com.