The November 3 opinion letter from the US Department of Labor (DOL) addressed frequently asked questions about employee continuing education. This is particularly important in industries, like healthcare, where the need for continuing education credit is common.
The letter involved a nonprofit hospice care provider with a variety of clinical staff, all of whom need continuing education credits. The facility gives each employee an educational fund which they can apply to their CEU (continuing education units). The facility does not exercise any control over which continuing education classes people attend. Attendance and any specific class are “always entirely voluntary.” The CEU fund itself can be used by employees to further their education, keep licensure current, and for similar processes. In this example, the DOL found that while the training would be covered by the CEU fund, the employees would not be paid for attending the training.
The CEU training highlighted in the letter is different from the training that you might see in a long-term care facility which is mandated by the facility to keep staff in compliance. All mandatory training in this long-term care scenario is treated by the facility as paid time. Needing education and being mandated to take specific education are two different things.
In addressing the law, the DOL specifically notes that:
“[A]ttendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are all met:
- Attendance is outside of the employee's regular working hours
- Attendance is voluntary
- The course, lecture, or meeting is not directly related to the employee's job
- The employee does not perform any productive work during such attendance.”
The opinion letter is fairly long with six hypothetical scenarios, each of which relates to voluntary training.
Scenario: voluntary training during non-work hours
A nurse does a voluntary training which she can do at any time but chooses to do it during non-work hours. The DOL notes that this is unpaid time because although the scenario relates to the nurse’s licensure and therefore her job, it is considered a “special situation.” In other words, it’s a course from an “independent bona fide institution of learning,” and satisfies a professional licensure requirement.
Scenario: webinar at work
An accounting clerk submits a request for an on-demand webinar directly related to his job. He has no continuing education component and he views the webinar during work hours. The DOL considered this paid time stating that “the fact of an on-demand webinar as described in these examples as voluntary which could have been viewed outside of regular working hours is immaterial,” due to the suffer or permit to work standard. In other words, the employer knew it was work time and let him do it so it was “work” and should be paid.
Practice note: if education is completed during an employee’s standard shift or normal work hours it is likely that the DOL will heavily weight this factor to determine that the time should be paid time.
This weighting is particularly clear in example four, where the employee attends an on-demand webinar which is unrelated to his job responsibilities, but during work time, so the DOL considers that to be compensable hours. In order to address this concern, the DOL suggests that employers establish a policy that prohibits viewing on-demand webinars or any non-mandatory training during work time.
Scenario: in-person, multi-day healthcare conference
The final scenario addressed in the opinion letter is significantly different from the prior on-demand webinar cases. In this instance, the nurse requests to use her education funds for an in-person weekend conference that covers several topics.
Should she be paid for the time spent at the multiple-day conference? Should she be paid travel time? The DOL determines that in this circumstance, the nurse would not need to be compensated for any of her travel or training time if participation in the training is voluntary and she is not doing productive work. The training time itself was considered to fall under the “special situation” definition because it:
- was voluntary
- occurred outside of the nurse’s regular working hours
- corresponds to courses offered by independent bona fide institutions of learning
The Big Picture
In addressing a number of these issues, the key factor was whether or not the training took place during the course of the employee’s regular workday and if it was voluntary. It can sometimes be difficult to determine a regular workday for certain types of healthcare employees who may work flexible schedules or on-demand.
As such, when considering whether or not employees are paid for training time you should remember that there is a difference between requiring training such as a certain number of CEUs to maintain licensure versus mandating specific training. Mandating specific training will typically result in compensable time and training taken during a standard workday as defined by the employer for that employee is likely to be compensable.
