Dive Brief:

• An employee who views an on-demand training webinar during regular work hours generally must be compensated for that time under the Fair Labor Standards Act (FLSA), even if the webinar is not directly related to the employee's job, the U.S. Department of Labor's Wage and Hour Division said in an opinion letter Nov. 3.
• The fact that an on-demand training was voluntary and could have been viewed outside of regular work hours was "immaterial" because federal law states that "'work not requested but suffered or permitted is work time.'" Employers could, however, prohibit such viewing during work hours, DOL said.
• In a separate scenario, DOL said that a nurse who travels to an in-person conference to train on certain topics — some of which directly relate to her job — during normal work hours using company-provided education funds does not need to be compensated for her travel or training time, so long as the training is voluntary and the nurse does not perform any productive work during the trip.

Dive Insight:

The opinion letter is one of two issued by DOL on Nov. 3. Its counterpart addressed the compensability of travel time within certain construction industry contexts. WHD last issued a batch of opinion letters in late August, including one in which it detailed the FLSA's minimum-wage requirements when reimbursing delivery drivers who use personal vehicles to complete deliveries.

Generally, attendance at lectures, meetings, training programs and similar activities need not be counted as working time as long as four criteria are met, WHD said in the Nov. 3 letter. Attendance of the activity must be both outside of the employee's regular working hours as well as voluntary. Also, the activity must not be directly related to the employee's job, and the employee must not perform any productive work during attendance of the program.

That some of the training mentioned in the letter involved an electronic format may be relevant to employers who have had to convert training programs to such formats during the COVID-19 pandemic. A recent study by the Association for Talent Development found that e-learning made up 21% to 40% of the median organization's learning portfolio, up from a share of 1% to 20% in 2019. Moreover, 89% of surveyed organizations said they used e-learning for mandatory and compliance training.

While they may provide some clarity for the employer in question, DOL's opinion letters do not always apply to other employers' particular situations, and courts may not necessarily defer to the agency's interpretation, one attorney recently told HR Dive.