By Danielle Moss, Esq.
Executive Summary: Agency employed homecare workers must be compensated for mandatory in-service time, but need not be compensated for other training time if each of the following four criteria are met:
- Attendance is outside the worker’s regular work hours;
- Attendance is voluntary;
- The course, lecture, or meeting is not directly related to the worker’s job; and
- The worker does not perform any productive work during such attendance.
29 C.F.R. § 785.27.
Training time that does not meet these criteria is compensable because the Fair Labor Standards Act (“FLSA”) requires that workers must be paid for all “hours worked.”
Training time is hours worked when the training primarily benefits the employer. Whether or not training primarily benefits the employer is a question of fact. Both the United States and the New York State Department of Labor (“NY DOL”) will utilize the above four criteria, along with any other relevant considerations, that could help determine whether the training primarily benefits the employer or worker. In general, the more latitude, flexibility, and choice workers have with respect to their training, the less likely the time spent at such training will be compensable.
Though training that primarily benefits the employer is generally compensable, pre-employment training is distinguishable from post-employment training. Time spent attending training programs that are a precondition to permanent employment may not be compensable. Bienkowski v. Northwestern University, 285 F.3d 138 (1st Cir. 2002). In Bienkowski, the court held that an employer was not required to pay probationary employees for hours spent at trainings, which were a precondition to their employment, even if the employees were permitted to complete these trainings while working for the employer on a probationary basis.
A state mandated training that enables a worker to obtain or maintain a state certification/license that could be used for any job, with any employer, is primarily for the benefit of the worker and not compensable time. Thus, time spent in training in order to obtain a certification as a home health aide or a personal care aide is non-compensable time.
In order to prevent training time from being compensable time, employers should ensure that the training offered is (a) outside work hours, (b) voluntary, (c) not directly related to the worker’s job (and in the alternative, if directly related to the worker’s job, that it is transferable) and (d) that no productive work is performed by the worker during the training.
A. Outside Work Hours
If a worker attends training during regularly scheduled work hours, the training time is compensable. However, if a worker on her own initiative attends an independent school, college or trade school after hours, the time is not hours worked for the employer even if the courses are related to her job. 29 CFR 785.30. An employer should not impose additional requirements on a worker (e.g. taking a particular course for the benefit of the employer, filling out work assignments during such training, etc.), such that a worker’s attendance at such training, even if outside work hours, becomes compensable time.
Attendance at a training is not considered voluntary if it is required by the employer, or if the worker is “given to understand or led to believe that her present working conditions or the continuance of her employment would be adversely affected by non-attendance.” 29 C.F.R. § 785.28.
Employers should be mindful of how training is presented to workers by supervisors. If an employer, or the representatives thereof, communicate to a worker that they must attend the training prior to their assignment to a home care case, though the training may be “voluntary in name,” it may not be considered voluntary in fact, and could be considered compensable time.
It is important to note that if a home care agency’s license is conditioned upon the state required training of workers, the attendance at continuing education and/or state mandated licensing requirements is not voluntary and is compensable time.
C. “Directly Related” to Worker’s Job
Training is considered “directly related” to the worker’s job if “it is designed to make the worker handle her job more effectively, as distinguished from training him/her for another job, or to a new or additional skill.” 29 C.F.R. § 785.29. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the worker to a higher skill, and is not intended to make the worker more efficient in her present job, the training is not considered directly related to the worker’s job even though the course incidentally improves her skill in doing her regular work. 29 CFR 785.29.
Time spent in “upgrade” training from personal care aide to home health aide is likely compensable and therefore, employers should be mindful of time employees spend at upgrade training.
In addition to upgrade training, workers may be interested in specialty trainings to improve their skills. Regardless of what that specific training may be (e.g., Alzheimer’s care) if the training directly relates to the performance of the worker’s job duties, such training time is most likely compensable.
There are special circumstances where a worker’s time spent in attending lectures, training sessions, and courses of instruction will not be considered compensable time. For example, an Agency may establish for the benefit of workers a program of instruction that corresponds to courses offered by an independent bona fide institution of learning. Voluntary attendance by an worker at such courses outside of working hours would not be hours worked even if they are directly related to her job, or paid for by the employer. 29 CFR 785.31.
D. No Productive Work Performed
When productive work such as completion of Agency assigned work, study of materials distributed by the Agency, or other work-related assignments are performed during a training class, the time spent completing productive work assignments is compensable. Therefore, employers should not assign homework or materials for workers to review or complete in anticipation of, or following a training, if the employer does not want such time to be compensable.
Action Steps to Protect Your Agency
- The more latitude, flexibility, and choice workers are given with respect to a training, the less likely the training will be compensable. Employers should take steps to ensure that (a) the training(s) is transferrable to other jobs, (b) the training is held outside regular work hours, (c) the training is explicitly and implicitly voluntary, in that it is clear no repercussions will take place if workers do not attend the trainings, (c) that workers are not required or directed by the employer to take the training, and (d) no productive work is performed for the employer during the training.
- To further limit the risk that time spent in training is compensable, employers should (a) secure the training at an independent school, college, or trade school that workers attend on their own initiative, or (b) establish training for the benefit of workers that corresponds to courses offered by independent bona fide institutions of learning. If an employer establishes training for the benefit of workers that corresponds to courses offered by an independent bona fide institution of learning, a worker’s voluntary attendance at such courses outside of regular working hours would not be considered compensable time, even if directly related to the worker’s job.
- To effectively address the issue of payment for training time, agencies must notify workers that the time they spend in training must be recorded accurately.
- Agencies need policies and procedures that lay out how training time will be compensated, and how workers can report time spent in training to the Agency. An example of such “hours worked” procedures would be to require written notice from the worker of any hours worked beyond those scheduled, which would include time spent in compensable training. Workers should be required to provide such information in the same payroll week as the additional hours were worked.