As workforces become more diverse, it becomes more likely that employers in many different industries will be employing workers who speak English as a second language. At the same time, many employers will offer opportunities to such employees to gain proficiency in speaking and writing English. In a recent opinion letter, the U.S. Department of Labor (“DOL”) held that time spent by employees voluntarily studying English at home with materials provided by their employer was not working time. DOL Wage-Hour Opinion Letter 2006-5 (March 3, 2006).

The employer is in the restaurant business and has many employees who speak little to no English. These employees do not work in jobs requiring English proficiency, but the ability to speak English “would likely provide them greater opportunities in the workforce and enhance job satisfaction and workplace morale.” Therefore, the restaurant developed a language skills training program for teaching basic English words and phrases. Currently, the restaurant does not allow employees to leave the premises with the written materials, and employees are allowed to study the materials during only their regular working hours, for which they are compensated.

The employees expressed an interest in taking the materials home for further study and to share with family members. The restaurant wanted to give the employees permission to voluntarily take the materials home and study outside of working hours, and asked DOL whether such after-hours self-study must be compensated as hours worked.

Under the FLSA, an employer generally must compensate its employees at a rate at least equal to the minimum wage for every hour worked, with time and a half for every hour worked over 40 in a workweek. DOL’s regulations provide that certain training activities need not be treated as hours worked. The relevant regulation states that “[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.

According to the DOL, whether the training is directly related to the employee’s job depends on whether the training “is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill. . . Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee’s job even though the course incidentally improves his skill in doing his regular work.”

DOL found that the first two requirements were met because the studying will be done outside of the employees’ regular working hours and will be entirely voluntary. “Even though the employer will continue to provide paid time for the employees to study the materials, this does not affect time spent training voluntarily outside of the employees’ regular working hours. Time spent in training during regular working hours is hours worked, but time spent outside of regular working hours may not be hours worked if the requirements of the regulation are met.”

DOL found that the third requirement of the regulation is satisfied because the training is general in scope and is designed to aid the employee’s English skills, not to “make the employee handle his job more effectively.” The training is designed to help the employee advance in society and in work. The fact that the training may have an indirect effect on an employee’s current job does not remove the training from the scope of the regulation.

Finally, DOL determined that the fourth requirement is fulfilled because the employees do not perform any productive work while studying the materials.

Citing another regulation, DOL also observed that when “an employer establish[es] for the benefit of his employees a program of instruction which corresponds to courses offered by independent bona fide institutions of learning,” the hours spent in such training are not hours worked even if the training is directly related to an employee’s job. The training offered by the employer need not be identical to any particular course but must be the same type of course as is offered at an institution of learning, and “the course content . . . must not be tailored to any peculiar requirements of a particular employer or of the particular job held by the individual employee.” Here, the training presented in the restaurant’s study materials is similar to English proficiency classes offered by local community colleges.

For these reasons, DOL concluded that the employees may voluntarily take the language skills materials home and study them outside their regular work hours without the study time being counted towards the employees’ hours worked. As it does with all of its opinion letters, DOL limited its opinion exclusively to the facts and circumstances presented.

Michael Stevens
202.857.6382
stevens.michael@arentfox.com