Labor Law: Unpaid Training
According to regulations, an employee’s time attending Training must be counted as hours worked unless it meets each of these four requirements:
- the attendance is outside the employee’s regular work hours;
- the attendance is voluntary;
- training is not directly related to the employee’s job; and
- the employee does not perform productive work for the company as part of the Training.
If each of these four requirements is met, the employer does not need to count the employee’s Training time as «hours worked» and does not have to pay the employees for that time.
Attendance is voluntary if the employee would not suffer any adverse employment action for not attending. 29 CFR 785.28 Obviously, «adverse employment actions» include discharge, discipline, loss of pay, denial of a wage increase, loss of promotion or other opportunity, or loss of job responsibilities. If the employer were to impose any of those consequences, or other similar consequences, for the employee’s decision not to attend the Training, then attendance is not «voluntary» and the time must be compensated.
Training directly related to an employee’s job
The vaguest of the four elements is the requirement that the meeting, seminar, lecture, or training be «unrelated to the employee’s job.» This does not mean the training cannot be job-related in any manner. After all, why would the company offer the training if it is utterly unrelated to the business? Instead, this requirement is directed specifically towards the job duties currently performed by the employee. 29 CFR 785.29
Said differently, if the training is meant to help the employee perform his or her current job duties more effectively, the time should be counted as hours worked. If, on the other hand, the purpose of the Training is to learn a new or additional skill, the time may not need to be counted as hours worked.
Now, there are at least two exceptions to this «directly-related» criterion. First, an employer does not need to count an employee’s time attending Training if the employee’s decision to attend was independent from any notice, prompting, or encouragement from the employer. 29 CFR 785.30. For example, if the employee completes online training at home after work based solely on her own initiative, the employer does not need to count the time as hours worked even if it is directly related to the work. Second, there are some special situations where the relatedness of the Training is not relevant. 29 CFR 785.31. The example given by the regulations is when an employer establishes an instructional program for the benefit of its employees that corresponds with a course offered by an outside educational institution. In that case, so long as attendance is voluntary, the employer does not need to count the time attending the Training even if it is directly related to the job.
There is a presumption that time spent by employees attending Training should be paid in order to comply with the FLSA. However, the presumption can be overcome if the factors listed above are met.