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Three recent opinion letters from the federal Department of Labor remind employers that in addition to paying for all work time, they might also have to pay employees for training time, including doing their homework. Whether training time is paid time depends in part on how voluntary the training is, and how targeted it is to the job duties.

The general principle is set out in regulations under the Fair Labor Standards Act. Attendance at lectures, meetings, training programs and similar activities is not paid time if:

•Attendance is outside of normal working hours;

•Attendance is voluntary;

•The training is not directly related to the employee’s job;

•There isn’t any productive work done during the training.

Stating the rule is easy, but applying it can be complicated. The details in the three opinion letters, each related to a question from an employer, can help illustrate the bare bones rule.

Paying for prerequisites

One business employed service technicians who worked with a particular computer networking system. To keep employees up to date, the business brought in trainers from the manufacturer to present a voluntary training class during working hours. Time spent in class was correctly designed to be paid time (employees were trained during working hours). Here’s the wrinkle: To make the most of the class, participants had to work through several Web-based training classes. Because these were Web-based they could be completed anytime and anywhere.

The Department of Labor looked at the Web-based classes independently and concluded that they had to be paid. The classes happened outside of normal work hours. They were completely voluntary. The employees weren’t doing any productive work. However, the classes were directly related to the employees’ work duties.

“Training is directly related to the employee’s job it if is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill.” The classes were designed to help employees perform their present job duties better. Certainly there are “special circumstances” under which outside training offered by a bona fide institution of learning might be unpaid time, but this Web-based training didn’t fit into the limited exception.

Paying for homework

When a city told certain employees that they were required to attend and pass training programs that were offered during working hours and were intended to help them become more proficient at their jobs, nobody doubted that the time spent in the training would be paid time. These employees, however, would also have to do some study outside of work; the employer wanted to know whether it had to pay for homework. In this case it was paid time, although the city could put a cap on the number of hours that employees were allowed to spend in doing homework. Time spent in outside study (like homework) is not paid time if it isn’t required or if employees voluntarily do a little extra to bolster their own ability. But if completion of homework is a requirement of a compensable training class, the time spent completing assignments is paid time.

What about general training?

In two of the three letters the training was clearly targeted to improve employees’ abilities to perform their present job duties. There are some kinds of training that have general applicability. As long as these trainings are offered off the job, are not required, and don’t involve actual work, then the time can be unpaid.

So, what kind of training is general? This was illustrated in the last of the three opinions. The business operated day care and child care facilities. Pursuant to state law, employees had to attain and maintain state certifications through coursework. The employer offered after-hours, in-service and continuing education training to employees. Employees were not required to attend (although, in general, employees still needed to maintain their certification levels).

Would the training be paid or unpaid? In this case, the Department of Labor concluded that the time was unpaid. Even if training is applicable to the job, it need not be paid when it is for the benefit of the employee and corresponds to the kinds of courses offered by independent bona fide institutions of learning. In the child care industry, this kind of instruction benefitted the employee because if was generally applicable and the employee could use the training and certification for other jobs besides the current one.

Training is voluntary when an employee can freely choose to train, or not train, without employment consequences. If the employee is given to understand or led to believe that his present working conditions or the continuation of his employment would be adversely affected if he does not attend, then the training is not voluntary.

The opinions, all issued in January, are available at http://www.dol.gov/esa/whd/opinion/flsa.htm.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.