NRF EXPLORING COMPENSATION ISSUE FOR ONLINE TRAINING

Julie Gallagher

WASHINGTON -- Food retailers that offer their employees opportunities to take online courses during non-working hours without compensation could be running afoul of a decades-old Department of Labor regulation, SN has learned.

The little-known regulation recently came to the attention of the National Retail Federation here, which plans to gauge awareness of it among its retail members next month at a semiannual meeting of its committee for employment law.

Members will be asked if the training-and-compensation regulation is deterring them from offering hourly employees voluntary access to e-learning courses, and whether they would like to see the government spell out the regulation's requirements more clearly, said Katherine Lugar, vice president of legal affairs, NRF. The meeting will take place April 7 and 8.

The issue was first brought to NRF's attention last October by Jeff Wells, chairman of the committee for employment law for NRF, and former vice president of human resources, Circuit City, Richmond, Va. He is currently president of consulting firm Human Capabilities, Livonia, Mich. His inquiry was directed at the Department of Labor's solicitor, Howard Radzely, a speaker at an NRF event.

"Because of the [DOL's] wage-and-hour law, Circuit City couldn't make all of our online courses available to all employees [without compensating them]," he said. "Because even if an employee logs on [voluntarily, in their spare time] the DOL considers it work."

However, he added, since online learning is not mentioned specifically in the regulation -- not surprising, since it was drafted in 1965 -- this has given rise to some confusion.

In the original regulation (on DOL's Web site), attendance at training programs doesn't need to be counted as working time (and thus require compensation) if all of the following criteria are met: It is outside normal hours; it is voluntary; it is not job related; and no other work is concurrently performed.

To gain more insight into the DOL's interpretation of the regulation, Wells and Lugar have met twice with the DOL since the issue was first raised in October. As of their last meeting, DOL representatives "agreed to do a search of opinion letters related to [online learning] and this regulation," said Wells.

"The DOL is reviewing the prior history of opinion letters to determine what its policy has been," he said. "If they don't find reasonable guidance in the opinion letters, then the issue will remain open and the DOL will entertain requests for opinion. The DOL is open to looking at the issue with an objective eye, and it's encouraged us to discuss it with them until there is closure."

Food retailers like Food Lion, Salisbury, N.C., offer online training. Food Lion does not offer courses outside work hours.