Questions and Answers on Library Law:
the Fair Labor Standards Act, Part II

Scott Uhler, Janet Petsche, Rinda Allison and Kathleen Henn

This column appears regularly in Illinois Libraries and addresses commonly asked questions on library law. If you have questions you would like addressed in this column, please send them to: "Q and A on Library Law," Illinois Libraries, at the address on the title page of this issue. While we are not necessarily able to answer all questions, we will try to address those issues that are of most concern to the greatest number of libraries. In Part 1 of this discussion, we addressed the issue of which employees are covered under the Fair Labor Standards Act ("FLSA"). This column continues with Part 2 of a discussion of the Fair Labor Standards Act. Common questions about the FLSA include queries about whether employees are entitled to compensation during time spent in training.

Q: Must library employees be paid for time spent in training?

A: It depends. In general, all activities that are performed by an employee are compensable if:

1. the activities are controlled or required by the employer,

2. the primary beneficiary of the activities performed is the employer, and

3. the activities are an integral and indispensable part of the principal activities performed by the employees.

However, training is not considered working time and the time spent attending the training is not compensable, if the following four factors are met:

1. attendance at the training occurs outside the employee's regular working hours;

2. attendance is voluntary (described in more deta below);

3. the employee does not perform any productive work during attendance at the training; and

4. the course is not directly related to the employee' job.

Q: Does the library have to compensate for training given to prospective employees?

A: Usually no. Training provided to prospective employees is not compensable unless a trainee is considered an "employee," as defined in the FLSA. The FLSA defines employ to include "to suffer or permit to work" for the employer, and it defines an employee a someone employed by the employer. For example, the court held in Walling v. Portland Terminal Co., 330 U.S. 148 (1947), that the training given to prospective employees of the railroad was not compensable because it was similar to training that the trainee could have received at a public or private vocational school and because the railroad received no immediate advantage from any activities done by the trainees during their training.

Q: When is attendance at training considered involuntary?

A: Training is determined to be involuntary if it is required by the employer or if the employee is led to believe that his present working conditions or continuance of employment would be adversely affected if he did not attend the training.

Q: What kind of training would be considered "not directly related" to a library employee's job?

A: Any training that is not designed to make the employee handle his job more efficiently is "not directly related." For example, if the employee attends computer training concerning a library's new computer system, at an outside school, during work hours, as

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requested by the library, that training would be directly related to the employee's job. On the other hand, if the employee attends computer training at an outside school, during non-work hours to enhance his or her computer skills and the training makes the employee more efficient and helps the library such training would not be directly related to the employee's job if the library had not required or led the employee to believe such training was expected to be undertaken as a condition of employment. Our next article will address this point in greater detail.

Q: What are some examples of non-compensable training?

A: If the employee attends an independent trade school or takes a correspondence course on his/her own initiative outside work hours, the training is not compensable. For example, if a library employee is attending college to earn a degree, classes taken at the college or university would not be compensable. Although the classes may be related to the employee's job duties, the employer will not be required to compensate the employee for his/her voluntary decision to take courses.

Even more common than questions about compensation related to training time are questions about compensation for overtime.

Q: Does the library have to pay overtime pay to an employee who works more than forty hours per week?

A: Yes and no. The library must compensate the employee for any hours worked in excess of forty hours per work week. But, instead of paying the employee the overtime rate, the library may offer the employee compensatory time ("comp time") at a rate of one and one-half hours for each hour worked in excess of forty hours. Comp time allows an employee to take time off work with full pay. The library may provide comp time if it has an agreement with the employee before the performance of work. The agreement can be an informal understanding and is not required to be written (although a record of the existence of the agreement is required to meet the record-keeping requirements explained below). However, best practice would dictate that such an agreement be reduced to writing.

Q: Are there any restrictions on the accumulation or use of compensatory time?

A: Yes, according to FLSA regulations, an employee cannot accumulate more than 240 total hours of comp time. The library must pay the employee for any comp time earned in excess of 240 hours. An employee may use comp time within a reasonable period after his or her request, if the time off does "not unduly disrupt" the operations of the library. To determine whether the request has been granted within a reasonable time, it is necessary to consider customary work practices of the library, including work schedules and availability of qualified substitute staff. A library should have a policy addressing the use of comp time and establishing parameters for its request and use.

Q: What happens if an employee has accumulated comp time and ends his/her employment with the library?

A: The library must pay the employee for all accumulated comp time that is unused.

Q: Can the library require an employee to schedule time off in order to use some of the employee's accumulated compensatory time?

A: Yes. In a recent U.S. Supreme Court case, Christenson v. Harris County, No. 98-1167, 2000 WL 504578 (U.S. May 1, 2000), the Court held that nothing in the FLSA prohibited an employer from compelling the use of accumulated comp time. Therefore, if an employee is reaching the maximum allowable amount of accumulated comp time, the employer may require the employee to schedule time off to avoid having to pay the employee for the excess accumulated comp time.

Q: Is a library required to keep records of comp time?

A: Yes. A library must maintain records that indicate the following:

1. the number of hours of comp time earned each week (at a rate of one and one-half hours per hour of overtime worked);

2. the number of hours of comp time used eachwork week;

3. the number of hours of comp time paid in cash (including the date of payment and amount paid); and

4. any agreement regarding the employee's earning and use of comp time.

Our next article in this series will continueto explore FLSA issues.

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