Most states require child care teachers and staff to take a specified amount of annual continuing education. Teachers and staff often attend training sessions after regular working hours. Does the center have to pay them for this training time?
That question has caused considerable confusion across the country in recent months. Many states require annual staff training. The federal Fair Labor Standards Act (FLSA) requires that staff get paid for training time if the training is required to keep their jobs. Yet regional offices of the Wage and Hour Division (W&HD) of the U.S. Department of Labor have ruled differently as to whether providers must get paid for training time.
The stakes are high. FLSA allows employees who win complaints to collect back pay for up to two years, or three years for “willful violations.” One major chain recently was slapped with more than $400,000 in back pay and fines for not paying teachers for time spent in training.
FLSA clearly states that private sector employees must be paid for training that takes place during regular working hours. Employers must pay whenever they require employees to attend training during or after regular hours. Employees working more than 40 hours in any week must be paid at least time-and-a-half for additional hours.
Much recent confusion has been caused by the definitions of “voluntary” training and whether training directly relates to the job. Contrary to popular belief, a center does not have to sponsor training or require it for it to “relate to the job.” Government-required training, for instance, may qualify. The key, and the source of seemingly conflicting opinions from different W&HD offices, depends on the quirks of individual state laws.
In sum, if your state requires teachers to assume the burden of getting on-going, after-hours training, the employer does not have to pay for training time. But, if the law gives the employer the responsibility of ensuring that its staff meet training requirements, the employer must pay for training time, even if the employee chooses the individual classes.
Minnesota regulations, for instance, require center-based providers to spend at least two percent of working hours a year in training. State law requires centers to document the training to keep their licenses. If providers move from one center to another, they cannot count training taken at the first center toward their annual allotment (the clock starts ticking again the day they switch jobs). W&HD ruled that the training benefits the employer, not the employee. Therefore, employers must pay for the training time. But if employees seek additional training, not required by law, the employer does not have to pay for that training time.
By contrast, the Georgia W&HD office ruled that state-mandated training does not need to be compensated when given outside regular working hours, because it isn’t for the benefit of a specific employer but is required for employee certification that transfers if the employee changes jobs.
Other state W&HD district directors have given varying opinions, but they generally divide along the same lines: whose certification is at stake, employer or employee. Your best bet is to check state law with your local W&HD office.
FLSA exempts salaried (non-hourly) teachers, supervisors, and administrators from overtime pay provisions. Historically, however, W&HD hasn’t considered most child care workers “teachers,” because they spend most of their time in physical caregiving rather than traditional teaching activities. Someone hired primarily to give specific lessons, such as a music instructor or teacher trainer, could qualify as salaried and thus be exempt from overtime pay for training.
W&HD has Ruled that Staff Must Be Paid for Time Worked When They:
Stay past closing time waiting for late parents to arrive—but not if staff show up early and read magazines waiting for their shift to begin.
· Remain on the premises “on call.” But if they remain “on call” at home, or have to leave a number, they don’t need to be paid.
· Get breaks for less than 30 minutes—but not if given 30 minutes or more off for meals, assuming they maintain no duties during that time. If staff watch over nap time or answer phones while eating, they must be paid.
· Drive home before or after work if they pick up or drop off children, or travel between centers during the working day.
· Work past normal hours, even if not approved, if the employer knows or has “reason to believe” the employee is working. The staff person who stays late cleaning the room must be paid even if not asked to stay, if the director sees that she hasn’t left.
· Attend special events, such as after-hour meetings for parents.
· Prepare lesson plans, even if they do so at home.
Publications available from local W&HD offices can help shed light on these confusing issues. Request FLSA Handy Reference Guide, WH-1282; Overtime, WH-1325; and Hours Worked under the FLSA part 785.
Charles Pekow, editor of Day Care USA newsletter, writes from Bethesda, MD.