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Thread: Employer Responsiblity For Continuing Education, is compensation required? New York

  1. #1

    Default Employer Responsiblity For Continuing Education, is compensation required? New York

    Hello Everyone.

    Our state recently enacted legislature that requires Veterinary professionals to complete a certain amount of continuing education credits per year in order to maintain and renew licensing to practice.

    If our veterinary practice requires our Veterinary Technicians to carry valid licensing in accordance with the law in order to be hired and to remain employed with our facility, are we responsible for compensating those employees for time and/or money spent to comply with state continuing education requirements?

    Are we required to pay for licensing renewals? The cost of this jumped, as I now know because my own is up for renewal and it went from $35.00 to $117!

    We already provide most of our licensed staff a continuing education allowance as part of their benefits package, it is renewed each anniversery year for a set amount, and it is on a use it or lose it pay out. But we may discontinue this due to the rough economy and the practice's inability to carry such a hefty benefits cost.

    I know my team will complain at the loss of this benefit, and I just want to make sure they can't say, "well, because you require it you have to pay for it."

    Veterinary Technicians are non-exempt status employee, we pay them via hourly wages.

  2. #2
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    If we are talking federal (FLSA) rules only:
    - As long as we are talking about state mandated training and the training occurs offsite under the employee's control, then these (under federal law only) are not hours worked. If the employer moves the training on site or exerts control over when/how the training occurs, then we move towards the hours worked line.
    - The money is a different issue then hours worked. Assuming that this is a state required license for a license belonging to the employee which they can take with them if they leave, then this is legally a "for the benefit of the employee" type of deduction/expense which legally can impact MW/OT.

    However, your state however is not my state, and I have no idea what NY thinks (if anything) on these issues.
    "Reality is that which, when you stop believing in it, doesn't go away".
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  3. #3

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    Thanks DAW

    The license is for the beneift of the employee and is a state mandated license. Similiar to the license required by human health professionals such as RNs.

    And most of the training would be off-site under the employee's own volition to attend or not. We have not ever demanded that employees attend specific events.

    So since the state is going to require these continuing ed hours, and the employee can choose the how and when to fulfil that state requirement, we are not required to pay for them as hours worked or pay for any reimbursements of expenses for attending as per federal law?

    Since we require the license for employment, making the continuing education hours part of the employment requirement would be redundant. Because if they did not fulfil the state continuing ed requirement, the state would revoke or not renew the license, and therefore the employee would be downgraded to job responsiblities that did not require said license until the state re-issued their license, or they'd be terminated if the license was not renewed within a certain time frame.

  4. #4
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    Quote Originally Posted by VeterinaryGroup View Post
    And most of the training would be off-site under the employee's own volition to attend or not. We have not ever demanded that employees attend specific events.

    So since the state is going to require these continuing ed hours, and the employee can choose the how and when to fulfil that state requirement, we are not required to pay for them as hours worked or pay for any reimbursements of expenses for attending as per federal law?
    Probably.
    - "Most" is not the same as "all". To the extent that the training is under the employer's direct control, we have an "hours worked" argument.
    https://www.dol.gov/dol/allcfr/ESA/T...9CFR785.29.htm
    https://www.dol.gov/dol/allcfr/ESA/T...9CFR785.30.htm
    - I would be very careful about trying to pretend that the "hours worked" issue and the "reimbursement of expenses" issues are directly related. They are not.
    - I still have no opinion on NY labor law. I will never have an opinion on NY labor law. My answers are in this case remain federal law (FLSA) only.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

  5. #5

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    Thank you again.

    I have tried looking up the NY laws. The Office of Professions hasn't even updated their website or has any admendments added to what is currently listed as the license holder's requirements of maintaining such licenses yet. Thus far, all I can say is that NY State seems currently mute on the subject. The new requirements were discovered only via press release within the industry.

    By "most" I meant the industry prevelance of "lunch and learns." Sales reps wanting to hook us into new products buy the team lunch to sit and listen to a 30 minute speal on why this product is so great for patients, and teach them how to upsell and present said product to clients. These little gatherings currently are always paid as hours worked for any team member that attends, but as far as I know, they do not count as continuing education courses. If they ever did start to count as CE towards license maintance, I could see where we possibly would have to count these little seminars as hours worked, as they are held on-site.

    They are not mandatory attendance though, and usually only the individuals already scheduled that shift attended. Voluntary attendence would not remove the requirement to pay them as hours worked, IE: everyone who has a lunch break has the option of clocking out and leaving for lunch OR clocking out and attend the seminar. Those that opt for the seminar would need to be paid as hours worked for attending because the seminar is being offered on premise? Anyone who decides to attend on their day off would also need to be paid as hours worked because it is offered on premise?

    But:

    A 8 hour long seminar being held by said vendor at ritzy hotel conference center that would count as continuing ed credit that cost $50.00 per individual to attend we would not be responsible for or have to pay hours worked for because the employee would have the option of attending of their own volition for their own benefit as part of the law's required license maintance. In the past, if an individual volunarily decided to attened such an event, they would bring us proof of attendance and their registration reciept, and we would reimburse them $50.00. Said individual would have had the option of using PTO to cover the attendance if they needed to be relieved from shift and was able to find coverage for their absence.

    Going forward:
    1) We do not have the funds to currently reimburse registration and/or travel fees to and from such events. This was a benefit incentive, and we no longer have the ability to carry such a benefit. This sucks and is bad for moral, I understand that, but it was either this benefit to go or ditching health insurance...
    2) We would still allow team members to use PTO if they were scheduled to work that day, but found coverage for their shift PROVIDED they still had PTO left to use.
    3) Anyone who wanted to attend the event, but did not have any PTO left to use, would need to take the day as an upaid leave of absence, and subjected to our absentee policy.
    4) We would NOT PAY anybody who attended such an event as "hours worked" since they voluntarily attended such an event on their own time if the day was their regularly scheduled day off.
    5) Any event we required as part of terms of employment we would have to compensate employees for expenses AND count the attendance as hours work, regardless of where and when said event was held.

    Again, NY State law seems mute on the subject, but I just want to make sure I am fully understanding the federal laws.

  6. #6
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    Still on federal law (FLSA) only, there is one more regulation I can cite. This is probably the most applicable to your question. The key is that all four things must be true for the hours to be not paid. Please note that the (a) criteria is not meet by the lunch meetings (meaning paid time). Also the seperate lunch rules (785.19) state that the employee must be completely freed of all duties.

    https://www.dol.gov/dol/allcfr/ESA/T...9CFR785.27.htm

    Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:
    (a) Attendance is outside of the employee's regular working hours;
    (b) Attendance is in fact voluntary;
    (c) The course, lecture, or meeting is not directly related to the employee's job; and
    (d) The employee does not perform any productive work during such attendance.

    -------

    I can repeat part of my previous answer. If you want the time to be unpaid, then the employer should not be micro-managing this in any sense of the word. Saying that the employee must maintain their state mandated credentials is fine. Suggesting that the employee "volunteer" for a certain class, not so much. Some judges or ALJ (or states) are very strict on the exact meaning of the word "voluntary".
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    I'm not in NY but NJ and PA. And I'm not in veterinary medicine but behavioral health. But all that being said, I can share what we did.

    In my field we have a lot of licensed professionals who have positions with the company for which the license is required. Getting the continuing education to keep one's license is seen as benefiting the employee, because the employee can take that license and work anywhere. Any attendance at continuing ed trainings is voluntary on the employee's part, and at the employee's discretion. We don't have any requirements about the trainings the person attends, just that they keep their state license up to date.

    We do not normally pay the fees for continuing ed trainings/seminars or for travel related to these. The person going to a training will need to use their PTO for the time they are out attending the training.

    But, to address the "morale" issue, we offered this option: When the person goes to a training (usually an all-day affair) instead of requiring the person to use PTO, we will agree to pay them "regular" time for the day, provided that after the training/seminar they present an in-house training on the topic to other teammates. If the person does not want to present an internal training to teammates, that's fine, but then they must use their PTO when they go to a seminar.

    If the seminar the person is attending seems to be of particular interest to the company, and could benefit us, then it's at the supervisor's discretion to also pay the person for the training fee and travel, but we typically don't do that, being a non-profit. But the person definitely must then train their teammates on what they've learned.

    FYI, for those of us with professional licenses, we end up going to a lot of conferences & seminars to keep our licenses, and the costs add up quickly, in addition to the licensure fees. If you hit a certain amount, you can deduct it when you do your tax return as unreimbursed business expenses. I did this several years when I had an employer who paid for almost nothing. After I learned this, and I worked in a setting where professionals were upset about the employer not paying for any continuing ed, I did a mini training on how to keep track of all these expenses, so that they could be used as tax deductions, and several professionals ended up benefiting from that. That helped morale too.
    Last edited by TSCompliance; 12-02-2010 at 11:33 AM.

  8. #8

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    Thanks TS, that sounds like a good policy.

    I'm not looking to micro-manage, but as the licenses are for the benefit of the employee and the employee can take said license anywhere to work, it seems that as long as we're not dictating to said employee how they fulfill their licensing CE requirements, we're off the hook for CE expenses and hours worked as long as the 4 criteria are met, which lunch-n-learns don't necessarily meet.

    I will certainly mention the tax write-off to our licensed team members if they aren't already aware of this. I do remember once deducting a conference my husband and I attended in 2007 as a business expense because we spent a week in seminars and wet labs. The expenses add up quickly.

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