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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”:
- Attendance is outside of the
employee’s regular working hours;
- Attendance is in fact voluntary;
- The course, lecture, or meeting
is not directly related to the employee’s job; and
- 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 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).
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