On November 3, 2020, the Department of Labor’s Wage and Hour Division published an opinion letter regarding when the FLSA requires employers to pay non-exempt employees (i.e., overtime eligible employees) for time spent in voluntary training programs. The general rule is that employers must pay employees for the time that the employers “suffer or permit [them] to work”—which turns on whether an employee spends the time predominantly for the employee or the employer’s benefit.

But for employees that attend lectures, meetings, training programs, and similar activities, the Department of Labor doesn’t require the employer to compensate the employee if (a) the session occurs beyond the employee’s regular work hours; (b) the employee’s attendance is voluntary; (c) the session isn’t directly related to the employee’s job; and (d) the employee performs no productive work while in the session. 29 C.F.R. § 785.27. The regulations identify two situations in which training hours are not compensable under the FLSA, even if the training is job-related: First, when “special situations” exist in which time spent attending lectures, training sessions, and courses of instruction is not regarded as hours worked, such as when an employer establishes for its employees’ benefit a program of instruction that corresponds to courses offered by independent bona fide institutions of learning. Second, if an employee on his or her own initiative attends, after hours, an independent school, college, or independent trade school. 29 C.F.R. §§ 785.30 – 785.31.

The Opinion Letter then states opines on how to treat a number of training-related scenarios. The key takeaways are (a) the employer does not have to pay for OFF-DUTY time spent at a job-related, on-demand, but voluntary webinar, if the employee could have attended while on duty; (b) the employer does have to pay the employee for ON-DUTY time spent at a job-related or non-job-related, on-demand, but voluntary webinar; and (c) the employer does not have to pay the employee for a voluntary out-of-town, in-person, weekend conference that covers some job-related topics if the conference occurs on days the employee does not typically work.

If you would like to know more about these new laws impact your employment situation, please contact attorney Noah Hurwitz by email ([email protected]).