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Are New York employers supposed to pay employees for time in voluntary training programs?

While this sounds like a straightforward question, the answer is that it depends. This matter is actually regulated in some detail under the federal Fair Labor Standards Act (FLSA) and its regulations – the main body of federal law governing wage-and-hour matters for most employers.

New WHD opinion letter

On Nov. 3, 2020, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) released a wage-and-hour opinion letter (FLSA2020-15) on this issue. The DOL, through the WHD, is the primary federal agency that enforces the FLSA. WHD opinion letters are official interpretations of the FLSA in response to requests from employers and other members of the public about how the law applies to specific scenarios.

When does voluntary training become work?

The WHD explains the basis of the FLSA: An employer must pay a person it employs – meaning “to suffer or permit to work” – for time worked. While the law does not define “work,” the U.S. Supreme Court has said that it depends on whether the time is “spent predominantly for the employer’s benefit or for the employee’s.”

So, the issue becomes whether attending a training course is primarily for the worker’s benefit or the employer’s benefit. First, the FLSA says that attending a training course during regular work time that directly relates to the job is compensable time. After that, it becomes more complex.

FLSA regulations specify that an employee’s time spent attending training programs, lectures, and similar activities are not paid work time if all four of these factors are present:

  1. Attendance is not during regular work hours.
  2. Attendance is voluntary.
  3. The training does not directly relate to the employee’s job duties.
  4. The employee does not work during the training session.

Further, even if the training does relate directly to the person’s job description, in two “special situations” training time is not considered work time and need not be compensated:

  1. Training the employer provides for employee benefit that “corresponds to courses offered by independent bona fide institutions of learning” and that may be conducted either by the employer or an independent learning institution must not be classified as paid work time, even if the employee attends voluntarily outside of work hours and the topic is directly related to the person’s job, and even if the employer pays for the training itself.
  2. Even if the course is job-related, if an employee on their own chooses to attend “an independent school, college or independent trade school after hours,” it is not compensable as “hours worked.”

This post introduces a complicated area of federal wage-and-hour law. The opinion letter, available at the link above, provides specific examples that provide more clarity.

This issue is important for employees and employers alike. A New York employer may seek guidance from an employment attorney up front, so they are prepared with policies and procedures to handle the question before employees complete such trainings. Employees who believe they should have been paid for their time attending past training sessions can consult with a lawyer about potential legal remedies.

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