EMS training time: To pay or not to pay

By Christie Mellott

With the U.S. Department of Labor's changes to the so-called "white collar" exemptions under the federal Fair Labor Standards Act scheduled to take effect on December 1, 2016, many employers are taking the time now to review all of their pay practices.

One particularly confusing pay practices topic for EMS employers concerns properly paying employees for training time. The general rule for determining the compensability of training time under the Fair Labor Standards Act is set forth in the Fair Labor Standards Act regulations at 29 C.F.R. § 785.27. This regulation states that:

Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:

1. Attendance is outside the employee's regular working hours;
2. Attendance is in fact voluntary;
3. The course, lecture, or meeting is not directly related to the employee's job; and
4. The employee does not perform any productive work during such attendance.

If any of these three elements are not met, then the employee must get paid for attending the training. But, if the employee attends a truly voluntary training session outside of his or her working hours, and does not do any work for his or her employer during this training, then the employer will not have to pay the employee. This issue is important for both employers and employees. Employees' time is limited, and additional time for training is time away from family, friends and personal interests. While some employers will pay for training even when not required, many employers do not want to pay employees if they are not required to.

EMS provider maintenance of prerequisites
It is important to distinguish between training time and maintaining the prerequisites EMS employees need to keep their jobs. Paramedics, EMTs and all the other EMS classifications need a certain amount of continuing education to maintain their certifications.

If a person is being paid to be a paramedic and his state requires him to get a certain number of continuing education credits in order to maintain his paramedic certification, then attending these continuing education courses would not necessarily be hours worked that an employer would be required to pay under the Fair Labor Standards Act. In other words, an employer generally does not have to pay an employee to attend the standard continuing education classes, as long as they are outside of working hours and the employee does no other work during the class. For example, if the paramedic chooses to take a continuing education class on athletic injuries in his spare time to obtain the continuing education he needs to renew his paramedic certification, his employer is not required to pay him.

But, if this same paramedic's medical director requires him to take PALS, PHTLS, ACLS or other types of training, even though attending these courses may get the paramedic continuing education credits, because these particular courses are mandatory at the paramedic's place of employment, then the employee must be paid for attending these training classes at his hourly rate plus any overtime that he may have incurred during the workweek.

One other thing to keep in mind is whether an EMS provider's state may require PALS, PHTLS, ACLS or other types of training to maintain the EMS provider's certification. If the certification is required by the state as opposed to being required by the employer, then this would be a different situation and, if the other factors are met, the time might not be compensable for these certifications. In other words, if the state a paramedic lives in requires her to have a PALS certification to maintain her paramedic license, then she may not get paid to go the PALS class if she goes to it in her spare time and performs no other work for the employer at the class.

When do EMS employers need to pay for training"
If an employee takes a particular continuing education class because she thinks it sounds interesting and she needs the continuing education credits, as long as this class is outside her normal schedule, it is not a class her employer requires, and she does not perform any work for the employer at the class, then she would not need to be compensated for attending the class. If any one of these requirements is not met, then the employee would have to be compensated.

When compensating employees for training, most EMS employees will be entitled to their hourly rate of pay for attending the training and working their shifts, plus any overtime incurred during that workweek, unless the employee is truly a management-level employee who properly meets one of the "white collar" exemptions. Some EMS employers have adopted one of the lawful alternate methods of paying overtime, such as the fluctuating workweek, or the 7(k) exemption for public agency firefighters, if the employee works over 40 hours in a workweek. If the employer has adopted one of these alternatives, then this may lawfully affect the amount of overtime that the employee receives.

Assuming the employer has not adopted a lawful alternate method for paying overtime, then the employee must be paid overtime at one and a half times the employee's regular rate of pay for all hours worked in a given workweek. The standard overtime rule applies to all non-exempt employees regardless of whether the employee is classified as full-time, part-time or per diem. The important thing is the hours worked in a workweek, not the classification of the employee as full-time, part-time or per diem.

Top takeaway for EMS employees and employers
EMS employees work hard and deserve to get paid for all the work that they do, and this work includes attending compensable training sessions. It is equally important for both employees and employers to know and understand the rules for when training sessions are compensable. This way, employees will have the confidence of knowing with certainty whether their employer is paying them correctly for the training sessions.

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