FLSA2009-15 — Time outside normal working hours completing assignments for city-required training programs as hours worked

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2009-15

January 15, 2009

Dear Name*:

This is in response to your request for an opinion regarding whether time spent outside
normal working hours by city employees studying for city-required training programs,
seminars, and classes is compensable hours worked under the Fair Labor Standards Act
(FLSA).
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You also inquire whether the city can set a reasonable limit on the number of
hours to be spent studying for such programs, seminars, and classes outside normal work
hours. Under the circumstances you describe, it is our opinion that all time spent
studying is compensable, but the city may limit the time the employees spend studying.

The city requires certain employees to attend and pass various training programs intended
to help the employees become more proficient at their jobs. The city employees attend
training during normal work hours. During the training, the instructor informs the
employees that they must read and/or study selected material and be prepared to discuss
this material during the next class. Employees leave the classroom and go home or to
their hotel (if the training is out of town) to study or read the assigned material.

The FLSA requires that an employer compensate an employee for all hours worked.
Section 3 of the FLSA defines “employ” as including “to suffer or permit to work.” 29
U.S.C. § 203(g); see also 29 C.F.R. § 785.11. This rule applies to work performed away
from the premises or the job site, including work performed at home. “If the employer
knows or has reason to believe that the work is being performed, he must count the time
as hours worked.”
29 C.F.R. § 785.12.

Under certain circumstances, time spent by employees of state and local governments
attending required training outside of regular working hours is considered to be non-
compensable.
29 C.F.R. § 553.226(b). Examples of non-compensable time include time
which is

required by law for certification of public and private sector employees
within a particular governmental jurisdiction (e.g., certification of public
and private emergency rescue workers), . . . [or] required for certification of
employees of a governmental jurisdiction by law of a higher level of
government (e.g., where a State or county law imposes a training
obligation on city employees), . . . even if all or part of the costs of
the training is borne by the employer.

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Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at
www.wagehour.dol.gov.

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29 C.F.R. § 553.226(b)(1)-(3).

It does not appear that the training you describe falls within the regulations governing
compensability of training time applicable to employees of state and local governments.
We will, therefore, consider the question under the regulations for determining the
compensability of training time applicable to all FLSA-covered employees, which are set
forth in
29 C.F.R. §§ 785.27 through 785.32.

Participation in training programs need not be counted as working time if all of the
following criteria are met:

(a) Attendance is outside of the employee’s regular working hours;

(b) Attendance is in fact voluntary;

(c) The course, lecture, or meeting is not directly related to the employee’s job;
and

(d) The employee does not perform any productive work during such attendance.

29 C.F.R. § 785.27.

“Attendance is not voluntary, of course, if it is required by the employer. It is not
voluntary in fact if the employee is given to understand or led to believe that his present
working conditions or the continuance of his employment would be adversely affected by
non-attendance.” 29 C.F.R. § 785.28. Further, “training is directly related to the
employee’s job if it 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.”
29
C.F.R. § 785.29. As a result, time spent in mandatory training is generally compensable.

According to the information provided, the training occurs during normal work hours.
The city requires the employees to attend and pass the training program. The purpose of
the training is to help the employees become more proficient in their jobs.
Since the
above criteria in (a), (b), and (c) are not met, the time spent participating in the training
programs you described is compensable hours worked.

The particular circumstances determine whether time spent studying for the training
programs outside the classroom after normal work hours is compensable. Time spent in
outside study is not compensable if the studying is not required by the employer. See
Wage and Hour Opinion Letter September 27, 1984 (copy enclosed) (“Time spent in
reading or studying at home would not be compensable hours of work if time is allotted
during regular working hours but some employees voluntarily do extra work at home on
their own to bolster their ability.”); Wage and Hour Opinion Letter July 17, 1980 (copy
enclosed) (time spent studying after regular working hours, in connection with a training
program, is not compensable because the excess study is not required by the employer);
Wage and Hour Opinion Letter July 27, 1971 (copy enclosed) (supplemental after hours
reading assignments that are not supervised or tested, and are not necessary to pass the

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final examination are primarily for the employee’s benefit and may be excluded from
compensable hours of work).

When completion of homework is a requirement of a compensable training class,
however, time spent completing assignments for such training is compensable.
Mandatory homework is addressed in Wage and Hour Opinion Letter September 9, 1970
(copy enclosed), which states,

[t]he employee’s participation in the program, both with respect to
classroom work and . . . practice at home, is not voluntary . . . if . . .
attendance is required for the continuance of . . . employment and if
such . . . practice at home is necessary to qualify under the program.
In such a case the time spent in classroom training as well as the time
devoted to . . . practice at home would be considered as compensable
hours of work which the employer may not disregard in determining
the employee’s compensation.

The circumstances in your example closely resemble the situation described immediately
above. Therefore, the time spent outside the classroom and after normal work hours
completing required assignments, such as the required reading and studying of materials
that you describe, is compensable hours worked.

The city may establish a specific amount of time to be spent completing assignments
outside the classroom and after normal work hours. However, as noted in 29 C.F.R.
§ 785.13:

[I]t is the duty of the management to exercise its control and see that the work
is not performed if it does not want it to be performed. It cannot sit back and
accept the benefits without compensating for them. The mere promulgation of
a rule against such work is not enough. Management has the power to enforce
the rule and must make every effort to do so.

If employees spend more time completing the assignment than allowed by the city, the
time may be compensable. See 29 C.F.R. § 785.12. The city could control the study time
by allowing the employees a realistic time to complete their reading and study
assignment within the class period or within the normal work day. See Wage and Hour
Opinion Letter September 27, 1984.

This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of any other factual
or historical background not contained in your letter might require a conclusion different
from the one expressed herein. You have represented that this opinion is not sought by a
party to pending private litigation concerning the issues addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.

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We trust that this letter is responsive to your inquiry.

Sincerely,

Alexander J. Passantino
Acting Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).