This post was authored by Alison R. Kalinski
The United States Court of Federal Claims (a court with nationwide jurisdiction hearing specialized claims against the federal government) recently held that a group of certified canine handlers were not entitled to compensation for time spent training to become certified canine instructors. This was because the training was voluntary and its purpose was not to improve their current duties. The case, Almanza v. United States, was decided on July 26, 2016.
The plaintiffs in Almanza were 290 Customs and Border Protection Officers and Border Patrol Agents (the “agents”) currently or formerly employed by U.S. Customs and Border Protection, Department of Homeland Security (“CBP”).
CBP operates a Canine Training Program based at two training centers. Agents wishing to work with canines must attend a seven-week training program. Canines, canine-handler agents, and canine instructors receive their training through this program. Upon successful completion, handlers are certified to work with a canine for one year, subject to monthly maintenance training under a certified instructor.
Certified canine handlers may also seek additional certification to become an instructor. Canine instructors perform the same duties as handlers, but also have additional responsibilities assisting handlers maintaining their certification. Certified canine instructors are eligible for promotion as a canine instructor at CBP’s training centers. An agent certified as canine instructor, but who does not work as an instructor at a training center, does not get a pay raise, new title, or additional compensation. Having the canine instructor certification, however, may help the canine handler advance into a supervisory position which could result in a promotion and pay raise, though canine handlers can still advance without the instructor certification.
To become a certified canine instructor, the agent must successfully complete a rigorous 12-week training program called the Detection Canine Instructor Course (the “Course”). CBP regularly solicits applicants for the Course through memoranda stating that agents who successfully complete the Course will need to perform additional duties, such as providing instruction support or maintenance training for other handlers. There is no requirement for canine handlers to participate in the Course. Canine handlers who do not have or seek canine instructor certification do not suffer any adverse consequences in their current jobs and may continue to work as canine handlers without attending the Course. Handlers must submit an application and interview for the course and selection is competitive; handlers are often denied spots because they lack sufficient experience. If a handler is accepted but fails the Course, the handler is not demoted or disciplined and can reapply.
To pass the Course, the handlers must pass four exams with a minimum score of 90%. No working hours are set aside for studying. The handlers were encouraged to study the material outside of their normal working hours and on the weekend. The handlers were not paid for time they spent studying. Accordingly, they sued for back pay and overtime compensation under the FLSA for the time they spent studying.
The Court had to determine whether the studying time was “hours of work” under the FLSA. Because this case concerned federal employees, the applicable regulation is 5 C.F.R. §551.423(a)(2) which provides that time spent training outside of regular hours is “hours of work” if “(i) [t]he employee is directed to participate in the training by his or her employing agency, and (ii) [t]he purpose of the training is to improve the employee’s performance of the duties and responsibilities of his or her current position.” While the Court easily concluded that the studying here constituted training outside of regular working hours because the studying was necessary to prepare for the exams, the Court concluded the training was not “hours of work” requiring compensation.
First, the plaintiffs were not required to participate in the training – it was purely voluntary and based on a competitive application. Canine handlers could continue to serve in their positions without taking the Course. Second, the purpose of the training was to become a certified canine instructor – not to improve the employee’s duties as a canine handler. While it was undisputed that the Course would improve the employee’s duties as a canine handler, that was a byproduct of the training, not its purpose. The goal of the training was to provide new skills to use as a canine instructor. Accordingly, the plaintiffs did not satisfy the requirements for compensation of training time and the Court granted summary judgment to the CBP.
Application to non-federal employers in California
Almanza is from outside of California and the Ninth Circuit (the federal appellate court covering California) and is not controlling authority in this state. Nevertheless, it provides guidance on how California employers should determine if training time is hours worked requiring compensation under the FLSA. For non-federal employers in California, the applicable regulation to determine whether training time must be compensated is 29 C.F.R. §785.27 which provides that training time need not be compensated if all of 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.
While the applicable regulation for non-federal employers in California is different than the regulation at issue in the Almanza case, the Almanza case is useful because its discussion is relevant to factors (b) and (c) above, namely, whether the training is voluntary and related to the employee’s job. In evaluating whether training time is voluntary, employers should consider whether the employee is required to participate and if the training aids an employee in obtaining promotions or pay raises. Employers should also consider whether the training is directly related to the employee’s job. If the focus of the training is to provide the employee with new skills or train the employee for another job, then the training is likely not “directly related” to the employee’s job. This is true even if the training incidentally improves skills needed for the employee’s job.