Thursday, March 20, 2008, 12:08 PM

How Big Is Your Tent?

An extremely ambitious - but unsuccessful - attempt to achieve wage-hour coverage is found in Loodeen v. Consumers Energy Co. (W.D. Mich. No. 1:06-CV-848, Mar. 14, 2008). Consumers Energy received an on-line application from Paul Loodeen for the position of CES Intern, who committed to completion of a CES Educational Certificate within two years of the date of hire. Despite disputes regarding what Loodeen was told during his pre-employment interview, it was clear that the certification required achievement of C-or-above grades in college-level course work additional to that Loodeen already possessed, and that some of his efforts in that regard were not acceptable due to poor grades. Consumers repaid Loodeen for the classes, although the reimbursement was scaled dependent upon the grade received.

Loodeen did not meet the two-year deadline, but remained employed with Consumers Energy and was promoted several times; in fact, he had been taken out of the intern program soon after he was hired. On November 30, 2006, he sued his employer, contending that since the classwork was not voluntary and was "directly related to his job," Consumers Energy owed him $7000 for his "classroom time, homework time and travel time" - a total of 267 hours, some of which he contended to be overtime. After conclusion of discovery and a failed mediation effort, the employer sought summary judgment.

At issue was 29 CFR 785.27, an interpretive regulation setting the criteria for treatment of employer training programs as compensable time. Magistrate Judge Brenneman concluded that the regulation was inapplicable since the education involved consisted of "regular college classes taken apart from plaintiff's employment, as part of a multi-year attempt to qualify for a new position in the company." As such, the classes recalled those dealt with in Bienkowski v. Northeastern University, 285 F.3d 138, 141 (1st Cir. 2002) - a "peculiar situation... where the training is not continuing education relating to existing job duties, but instead a pre-condition for employment which the employer tolerantly allows to be satisfied while the employee is working on a probationary basis."

Therefore, the compensable nature of the coursework depended on the applicability of the Portal to Portal Act, 29 USC 254. The Court found that the classes were not "integral and indispensable" to his regular job's "principal activities." Loodeen performed no productive work for the employer while attending classes , and Consumers Energy could have established the course work as a requirement for initial hire. "In short, Consumers Energy did not hire Loodeen to be a student." Loodeen could take the classes wherever and whenever he chose, and he was not on call or in any way restricted in his activities away from the job. Accordingly, summary judgment was granted.

The interplay between educational requirements for employment and the requirements of federal (and, in some instances, state) law can be a complex subject - one best dealt with without litigation. Consumers Energy obviously did its homework, and the in-house attorney who defended the company is to be congratulated for her skill in achieving a good result.

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