DOL Clarifies When Continuing Education and Travel Time Are Compensable

​The U.S. Department of Labor (DOL) has clarified the rules on when time spent fulfilling continuing-education requirements must be compensated under the Fair Labor Standards Act (FLSA) in a recent opinion letter.

In a separate opinion letter, the DOL explained when the travel time of nonexempt foremen and laborers is compensable.

A main takeaway from the first opinion letter is that when an employer lets an employee fulfill continuing-education requirements during normal work hours, the time will be compensable under the FLSA, said James Coleman, an attorney with Constangy, Brooks, Smith & Prophete in Fairfax, Va.

"Employers should pay their employees if they fulfill continuing education during regular work hours, or they should have a clear written policy prohibiting employees from attending such training during their regular work hours," said Susan Harthill, an attorney with Morgan Lewis in Washington, D.C.

"Employers will need to carefully consider the content of the continuing education—that is whether it directly relates to the employee's job, when it is being offered and whether such participation is voluntary," said Jeffrey Ruzal, an attorney with Epstein Becker Green in New York City. "These criteria dictate whether such continuing education must be treated as compensable work time."

Six Hypotheticals

In FLSA 2020-15, the employer asked the DOL for guidance on the compensability of employee training in six hypotheticals where participation in the training programs is voluntary. Here are the scenarios and the DOL's answers.

1. A nurse uses her employer-provided education funds to take continuing education directly related to her job off hours, though she could view the on-demand webinar anytime. Is it permissible to treat this as unpaid time?
Yes.

2. An accounting clerk uses his education funds for a webinar directly related to his job but that has no continuing-education component. Although he could view it any time, he does so off hours. Is it permissible to treat this as unpaid time?

The DOL said there wasn't enough information to determine whether the clerk's time viewing the webinar qualified as work time for FLSA purposes. If additional facts showed that the webinar corresponded to courses offered by independent bona fide institutions of learning, the time spent watching the webinar might not be considered compensable.

3. An accounting clerk uses his education funds for a webinar directly related to his job but that has no continuing-education component. Although he could view it anytime, he does so during work hours. Can the employer require him to substitute paid time off for the time spent watching the webinar?

No. The employee's participation during regular work hours in a training program that directly relates to the employee's job is work time for FLSA purposes. But the DOL added that the employer could establish a policy prohibiting such viewing during regular work hours.

4. An accounting clerk uses his education funds for a webinar that is not directly related to his job and has no continuing-education component. Although he could view it anytime, he does so during work hours. Is it permissible to require him to substitute paid time off for the time spent watching the webinar?

No. Even though the webinar is not directly related to the clerk's job, the viewing time would qualify as work time for FLSA purposes when the clerk views the webinar during regular work hours. But the employer could establish a policy prohibiting such viewing during regular work hours.

5. A nurse uses her education funds for a webinar that isn't directly related to her job but has continuing-education units that can go toward her licensure requirement. Although she could view it anytime, she does so during regular work hours. Is it permissible to require her to substitute paid time off for the time spent watching the webinar?

No. The viewing time would qualify as work time under the FLSA. But the employer could establish a policy prohibiting such viewing during regular work hours.

6. A nurse uses her education funds for an in-person weekend conference that covers several topics, some of which directly relate to her job. Continuing-education units are available. She has to travel out of town to attend. Both the travel and the conference cut across normal work hours, but the actual conference occurs on days she normally doesn't work. Does she have to be paid for her travel or training time?

No, so long as her participation in the training is voluntary and she does not perform any work during the trip.

The opinion letter provides that employers may prohibit employees from attending courses during work hours, Coleman emphasized. But an employer may want to consider allowing time during work hours to take a course to complete continuing-education requirements if the course is related to the employee's job, he added.

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Travel Time of Nonexempt Foremen and Laborers

In FLSA 2020-16, the DOL considered three scenarios involving whether the travel time of nonexempt foremen and laborers is compensable.

In the first scenario, the job site is local. Each foreman retrieves a company truck in the morning from the employer's principal place of business, drives it to the job site and returns it at the end of the day. Laborers may choose to drive directly to the job site or drive to the principal place of business and then ride to the job site with the foremen.

In the second scenario, the job site is between one-and-a-half and four hours' travel time from the employer's principal place of business. The employer pays for hotel accommodations for those who work onsite and a per diem meal stipend. Each foreman retrieves a company truck from the principal place of business at the beginning of the job, drives it to the job site and returns it at the end of the job. Laborers are to drive their personal vehicles to and from the remote job site at the beginning and end of the job, though some want to drive their personal vehicles to the employer's principal place of business and ride to and from the job site with the foremen.

In the third scenario, the facts are the same as in the second, except the laborers choose to travel between the remote job site and their homes each day rather than stay at the hotel.

The foremen's travel time between the employer's principal place of business and the job sites is compensable in each scenario, the DOL said.

In scenario one, the laborers' travel time isn't compensable.

In scenario two, the laborers' time driving in their own vehicles to the remote job site at the beginning of the job and home at the end of it is compensable if their travel cuts across their normal work hours, even if they are traveling on what would otherwise not be a workday, the DOL said. Travel from their hotel to the job site would not be compensable. If the employer offers the laborers the opportunity to ride to the remote worksite with the foremen in the company vehicles, the employer may choose to count as hours worked either the time accrued during a trip in the company trucks or the time the laborers actually take to travel to the remote worksite.

In scenario three, the laborers' travel to and from the job site at the beginning and end of the job would be treated the same as in the second scenario. The laborers' intervening drives home and back to the remote job site would not be compensable, which Coleman described as the "most notable" portion of this opinion letter.