Training Required for Promotion and the FLSA

Today’s FLSA Question: I am an HR director for a mid-sized city. The fire chief wants to require all future officers possess NFPA 1041 (Fire Service Instructor) and 1021 (Fire Officer I) certification prior to getting promoted. The chief tells me these classes are frequently offered at the state fire academy at a minimal cost. The chief also believes these classes are essential for any company level officer in today’s fire service. He plans on paying for the classes and allowing paid time off for firefighters to attend the classes, however he does not plan on paying the firefighters to attend during off-duty hours. The firefighters appear to be happy with this arrangement; however, I am a little skeptical. Wouldn’t the FLSA mandate the city pay firefighters for all the time they spend attending these required classes?

Answer: As a general rule the FLSA mandates job-related training be compensated. Similarly, the FLSA mandates job related training required by your employer also be compensated. This makes sense. If your employer requires you to attend job-related training, you should be paid.

Here, the chief wants to require firefighters participate in job-related training in order to be eligible for promotion to a higher rank within the department. At first glance, one might think this training time would also need to be compensated. However, believe it or not, the FLSA does not require you pay off-duty firefighters while attending required training necesary for a promotion.

First, even though the fire chief is requiring the training for promotional eligibility, the training itself is voluntary. There is no departmental requirement for firefighters to either seek promotion or take the training classes. Department of Labor regulations found at §785.28 provide that training is involuntary “if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.” That would not be the case here. The firefighters are free to either seek promotion or not.

Second, assuming that NFPA 1041 and 1021 training is truly intended to prepare firefighters for the challenges of being an officer, is that the type of “job-related” training contemplated by the DOL regulations? Department of Labor (DOL) regulations found at §785.29 clearly state that training designed to prepare an employee for “a higher skill, and is not intended to make the employee more efficient in his present job, … is not considered directly related to the employee’s job even though the course incidentally improves his skill in doing his regular work.” The purpose of the 1041 and 1021 training is to improve and instill skills necessary to be an effective officer.

Let’s get back to your question. There is a possibility that local laws and/or collective bargaining agreements could restrict your ability to follow the chief’s plan, however the FLSA should not be a hurdle for you. My advice would be to sit down with the fire chief and your local legal counsel to develop comprehensive policies regarding the compensability of training time. Most job-related training is compensable. The above is the exception, not the rule. It is best to acknowledge that factor within your policies and procedures. Differentiate the circumstances that allow the fire department to treat some training as non-compensable in contrast to the general rule that requires compensation.

Also, you and the chief may want to identify key areas related to both the 1041 and 1021 curriculum that the chief believes are critical for an officer’s success. Consider including some of these skills and abilities within the job descriptions for the fire officer positions. Finally, include all parties in this conversation. The firefighters (and their representatives if applicable), fire and city administration, and local legal counsel should all be part of this conversation. This will hopefully help avoid confusion and possible needless litigation regarding the compensability of training time.

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