FLSA2009-1 — Employer provided training for state-mandated employee certification and compensable hours

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

FLSA2009-1

January 7, 2009

Dear Name*:

This is in response to your request for an opinion regarding whether time spent by child
care center employees in State-mandated training programs, offered by the employer and
required of the employee as a condition of maintaining her State certificate, is hours
worked under the Fair Labor Standards Act (FLSA).
1
It is our opinion that the time is
not hours worked under the FLSA.

Your client operates facilities in several states that provide day care and education to
children ranging in age from infants to school age. The facilities are licensed by the State
and State-certified child care teachers and assistants staff the facilities. Your client offers
in-service training or continuing education after regular business hours at day care centers
in those states that require employees to take such training in order for the employees to
maintain their state certification. The courses correspond to those offered by independent
bona fide institutions of learning. Attendance at the training is voluntary and employees
do not perform work during the training. The teachers and assistants may also attend
training offered by other organizations that meet the state mandated training
requirements.

Under 29 C.F.R. § 785.27, “[a]ttendance at lectures, meetings, training programs and
similar activities need not be counted as working time if the following four 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.

Based on the information provided, the training your client provides appears to meet the
criteria for training that does not constitute hours worked. The in-service training is
offered only after regular working hours, thereby satisfying criterion (a). Criterion (b) is
met because the employer does not require attendance at such training, but rather it is the
employee’s decision whether to participate in the training. Further, we understand that
the employer does not impose additional requirements on the employee, such as taking a

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at www.wagehour.dol.gov.

2
particular course. Therefore, the attendance at the training is voluntary. See Wage and
Hour Opinion Letter September 9, 1996 (copy enclosed).

With respect to criterion (c),
29 C.F.R. § 785.31 provides an exception from the
requirement that the training not be directly related to the employee’s job where the
training is for the benefit of the employee and corresponds to courses offered by
independent bona fide institutions of learning. Voluntary attendance of such training by
the employee outside normal working hours would not be hours worked even though the
training is clearly related to the employee’s job. See Wage and Hour Opinion Letter
September 10, 1998 (copy enclosed); 29 C.F.R. § 785.31. In the child care industry, we
regard child care training to be for the benefit of the employees when it provides
instruction of general applicability that enables an individual to gain or continue
employment with any child care service provider. See Wage and Hour Opinion Letter
September 9, 1996. Here, the courses correspond to those offered by bona fide
institutions of learning and qualify the employees to gain employment with any child care
service provider. Therefore, criterion (d) is met so long as the employees are not
performing any productive work during the training.

Therefore, it is our opinion that the time spent by employees voluntarily attending in-
service training or continuing education required by the State and provided at your
client’s day care center is not hours worked under the FLSA. This is true even if the
State requires that individuals may only be employed by the employer if they meet the
in-service or continuing education requirements, so long as the State does not require the
employer to provide the training.

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.

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).