In today’s knowledge-based economy, workers must continually develop and increase their skills to keep pace. This often means attending lectures, classes or other training sessions. Sometimes these training sessions are required by the employer, sometimes they are required by the state, and sometimes they are wholly voluntary. Many employers do not pay for training time, as they believe that someone isn’t truly “working” if he or she is sitting in a classroom. This approach runs foul of the Fair Labor Standards Act (FLSA). Training time is compensable under the FLSA unless several specific requirements are met.
The Default Rule – Training Time Should Be Paid
Federal regulations state that, as a default rule, training time is working time. As a result, employees must be paid for all time spent in job-related training, lectures, or classes – including overtime pay, if the training takes them over 40 hours in a workweek. Employers are not required to pay for training time only if the following four criteria are all met:
- Attendance is outside of the employee’s regular working hours;
- Attendance is in fact voluntary;
- The course, lecture, or meeting is not directly related to the employee’s job; and
- The employee does not perform any productive work during the attendance.
All four of these requirements must be satisfied for an employer to treat training time as unpaid time. Otherwise, the training time must be treated as normal working hours. Each of the four factors is discussed in more detail below.
Does It Take Place Outside Regular Working Hours?
The first factor is whether the training occurs during regular working hours, which is usually fairly simple to determine. For example, a weekly safety meeting at a construction site, held every Friday at 8:00 am, is within the regular working hours. Employees should therefore be paid for that time. However, a training session held on Wednesdays from 6:00 pm to 8:00 pm would probably not be within regular working hours, if the workers usually punch out before 6:00 pm..
The “regular working hours” may vary from employee to employee. For instance, imagine that one employee generally works a 6:00 am to 2:00 pm shift, and another works the 12:00 pm to 8:00 pm shift. If both attend the same 10:00 am training session, that training session is within regular working hours for the first worker, but not for the second.
Is Attendance Voluntary?
The next factor is whether attendance is voluntary. Determining whether something is “voluntary” is often a tricky question when it comes to the employment relationship. Many employers will say that a certain event is voluntary, but nonetheless punish employees who do not attend. There is no such thing as a mandatory volunteering – for training time to be unpaid, the event must be truly voluntary, and the employer cannot coerce or pressure employees into attending.
Is The Training Directly Related To The Job?
The third factor is whether the training is “directly related” to the employee’s work. This is the most subjective of the four factors, and it is often difficult to determine whether any given training is truly directly related to someone’s job duties. Federal regulations distinguish between training that allows an employee to “handle his job more effectively” as opposed to “training him for another job, or to a new or additional skill.” Of course, there is not always clear distinction between these two categories.
If the training time is intended to prepare the employee for a potential advancement or promotion, it is not directly related to his work. The rationale behind this rule is that this training is directed at a different job, not the employee’s current job. Therefore, if an employee is required to obtain a certain certification to obtain a promotion, but that certification is not required for his current job, training time spent obtaining the new certification is not directly related to his work for purposes of this regulation.
Does The Employee Perform Productive Work?
If the employee performs any productive work during the training time, he must be paid for it. This is reasonable enough – if the employee is actually working, rather than training, there is no reason not to treat the time as working time. Thus, if a company trains new employees by requiring them to actually perform their actual job duties, that training time is working time and must be paid. The fact that the worker is called a trainee during this time period is not relevant.
Variable Hourly Rates
As a final note, the law allows employers to pay different hourly rates for different types of work. Therefore, an employer may choose to pay an employee a lower hourly rate for compensable training time provided it is clearly communicated to the employee ahead of time. If an employee with different hourly rates works overtime, the calculation of the overtime rate becomes somewhat complicated. Employers should seriously consider speaking to an employment attorney before implementing these types of variable rates.
If you have any questions about this article, or believe you have not properly been paid for compensable training time, call me today at (504) 267-0777, or email me here.