National Guard members claimed that they were entitled to compensation for time they spent taking correspondence training courses, but the federal government has disagreed.

What Happened

“Curtis,” a retired staff sergeant in the Alabama National Guard, said that the Secretary of the Army and the Secretary of the Air Force required him and others to take certain correspondence courses to keep their positions or advance in rank.

In 2000, he filed a class action complaint in the Court of Federal Claims on behalf of himself and other similarly situated Army and Air National Guard members seeking compensation for time spent taking those courses.

At the time, 37 USC §206 stated that a member of the National Guard or a member of a reserve component was entitled to compensation under these circumstances: “(1) for each regular period of instruction, or period of appropriate duty, at which the member is engaged for at least two hours, including that performed on a Sunday or holiday; [and] (2) for the performance of such other equivalent training, instruction, duty, or appropriate duties, as the Secretary may prescribe.”

The statute also stated that the Secretary of the Army or the Secretary of the Air Force may set “minimum standards that must be met before an assembly for drill or other equivalent period of training, instruction, duty, or appropriate duties may be credited for pay purposes” and that “[t]his section does not authorize compensation for work or study performed by a member of a reserve component in connection with correspondence courses of an armed force.”

According to the Court of Federal Claims, that latter provision barred Curtis from receiving compensation, because he was a member of a reserve component. (National Guard members of each state also must enlist as members of the U.S. National Guard, which is a reserve component of the Army and the Air Force.)

The U.S. Court of Appeals, Federal Circuit, reversed, holding that “members of the National Guard only serve the federal military when they are formally called into the military service of the United States. At all other times, National Guard members serve solely as members of the State militia under the command of a state governor.” In other words, because Curtis had not been formally called into the military service of the United States, he was not a member of a reserve component when he took the correspondence courses and, therefore, his claim for compensation is not barred.

The government had argued that Curtis was not entitled to compensation without authorization from the Secretary for payment for the time he spent taking required correspondence classes. However, the appeals court rejected that argument, saying, “Section 206(a)(2) requires payment for equivalent training that the Secretary prescribes. It does not require that the Secretary prescribe payment.”

The appeals court sent the case back to the Court of Federal Claims for Curtis to “establish which classes the Secretary of the Army required, if any, and which classes he took to satisfy those requirements,” as well as the amount of compensation he is due.

Meanwhile, Congress amended the statute twice. In 2006, it amended §206(d) to make it clear that National Guard members would not be compensated for taking correspondence courses. The amended section states that “this section does not authorize compensation for work or study performed by a member of a reserve component or by a member of the National Guard while not in Federal service in connection with correspondence courses of a uniformed service.” A few months after that, Congress made the amendment retroactive to September 7, 1962.

The trial court ruled in favor of the government, and Curtis appealed.

What the Court Said

The appeals court affirmed the decision, saying that the lower court did not err in finding that Curtis and the others are not entitled to compensation for their time spent taking correspondence courses. “…[A] member of the Air or Army National Guard is not entitled to receive payment for training unless the training took place under written authorization placing him or her into a pay duty status,” the appeals court said.

Since Curtis and the other Guard members did not receive written orders or authorizations from their state commanders in connection with any of the correspondence courses they took, none of them was placed in a duty status necessary for federal payment.

Clark v. United States (No. 2011-5003) (U.S. Court of Appeals, Fed. Cir., 8/29/11)

In Brief

This case specifically addressed whether the federal government was required to pay National Guard members for time spent taking correspondence courses. However, it serves as a good reminder to other employers to make sure that they are in compliance with requirements under the federal Fair Labor Standards Act (FLSA) and applicable state laws regarding whether employees must be paid for time spent training.

Under the FLSA, training programs conducted during regular working hours constitute work time and must be compensated as such. After-hours training need not be compensated if attendance is entirely outside normal working hours and is voluntary; the training is not directly related to the employee’s present job, and the employee does not do any productive work during the program.