Do You Have to Pay Nonexempt Employees for Attending Voluntary Training?
The Department of Labor’s Wage and Hour Division (WHD) provided employers much needed guidance in a recent opinion letter regarding whether a nonexempt employee’s attendance at voluntary training must be counted as “hours worked,” and therefore, paid under the Fair Labor Standards Act (FLSA).
Under the FLSA’s regulations, employers do not generally have to pay employees for attending training if all of the following conditions are met:
- Attendance is outside the employee’s regular work hours
- Attendance is voluntary
- The training is not directly related to the employee’s job
- The employee does not perform any productive work during attendance
The FLSA acknowledges two exceptions when training that directly relates to an employee’s job may be excluded from “hours worked”:
- When employees, who decide on their own initiative, attend an independent school, including college or trade school, after work hours
- When employees attend training outside of work hours that is provided and paid for by their employer for the employees’ benefit and that corresponds to courses offered by independent educational institutions
In the six scenarios it looked at, the WHD assumed the employee’s attendance was voluntary and the employee did not perform any productive work during the training:
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Scenario |
Does the Employee Need to be Paid? |
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An employee views an on-demand webinar after work hours. It directly relates to the employee’s job and counts toward the employee’s licensing requirement. |
No. It corresponds to courses offered by an independent educational institution (because it can satisfy a professional licensing requirement) and was viewed voluntarily after work hours. |
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An employee views an on-demand webinar after work hours. It does not count toward the employee’s continuing education requirements but is directly related to the employee’s job. |
It is unclear based on these facts. If additional facts show the webinar corresponds to courses offered by an independent educational institution, the employee would not have to be paid. |
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An employee views an on-demand webinar during work hours. It does not count toward the employee’s continuing education requirements but is directly related to the employee’s job. |
Yes. It was viewed during work hours. |
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An employee views an on-demand webinar during work hours. It does not count toward the employee’s continuing education requirements and is not directly related to the employee’s job. |
Yes. It was viewed during work hours. |
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An employee views an on-demand webinar during work hours. It counts toward the employee’s continuing education requirements but is not directly related to the employee’s job. |
Yes. It was viewed during work hours. |
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An employee attends an out-of-state conference. Some topics directly relate to the employee’s job and some don’t. Continuing education is available. The employee attends the conference on days the employee doesn’t normally work. |
No. The training is voluntary, outside of work hours and seems to correspond to courses offered by an independent educational institution. The travel time is similarly excludable as personal travel time. |
Please contact any member of Phelps’s Labor and Employment team if you have questions or need advice and guidance.