Top Ten Tips Disclaimer
This is a particularly difficult area for many employers to understand. The general rule is found in the wage and hour regulations at 29 C.F.R. 785.27, which states the following:
Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if the following four criteria are 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 such attendance.
Hence, if all four criteria are not met, the time so spent will be considered compensable.
29 C.F.R. 785.28 explains that attendance is not truly voluntary if it is required by the employer, or if the employee is led to believe that nonattendance would somehow adversely affect his employment, as would be the case with most meetings called by the employer. 29 C.F.R. 785.29 notes that "training is directly related to the employee's job if it is designed to make the employee handle his job more effectively, as distinguished from training him for another job, or to a new or additional skill."
It is permissible to have a wage agreement whereby employees are paid at a lower rate (at least minimum wage) for compensable training and meeting time and other types of non-productive work time, as noted in 29 C.F.R. 778.318(b). However, any such agreement should be clearly expressed in a written wage agreement signed by the employee, and the time so distinguished must be carefully and exactly recorded. Further, if such work results in overtime hours, the overtime pay must be calculated according to the weighted average method of computing overtime pay, as provided in 29 C.F.R. 778.115 (see the topic "Employees Working at Two or More Rates" in the article "Calculating Overtime Pay" in this book). Due to the complexity of the overtime calculation method necessary and the recordkeeping involved, any company attempting this should have the agreement prepared with the assistance of an attorney experienced in this area of the law.
G.1. Focus on Meetings
Typical examples of meetings for which an employer would have to compensate employees for their time include:
General staff meetings
"Get Acquainted" meetings
Any meeting called by the employer, regardless of whether it is held during the employee's regular work hours
Examples of Non-Compensable Meetings
An employer would not have to pay employees for time spent in meetings outside the employee's normal working hours that were completely optional and non-work related for the employees. Such meetings might include:
Meetings of youth organizations sponsored or supported by the employer
"Happy hours" and other optional socializing
Company sports team events
Special interest or hobby group meetings sponsored or supported by the company
G.2. Focus on Training
New employee orientation and on-the-job training involve compensable work time. If an employee attends a training course on his or her own after hours or on the weekend in order to qualify for a different line of work or possibly for a promotion or transfer, the employer would not have to pay for the time spent in such training. Similarly, 29 C.F.R. 785.30 of the regulations makes clear that "if an employee on his own initiative attends an independent school, college, or independent trade school after hours, the time is not hours worked for his employer even if the courses are related to his job." The important thing there would be that the employer did not instruct the employee to attend such classes or otherwise make the course a condition of the job. In fact, 29 C.F.R. 785.31 goes so far as to state that if the employer offers for the benefit of the employees a training course "which corresponds to courses offered by independent bona fide institutions of learning", an employee voluntarily attending such courses would not be entitled to pay for time spent in such training even if the courses are directly related to the job or provided free of charge by the employer (however, such time would have to fall outside the employee's regular hours of work, as per 29 C.F.R. 785.27(a)).
However, employers should be careful to distinguish between training that is voluntary or not necessary for a job and training that the employer is required by law or regulation to furnish to its employees. A good example of this is found in the child care industry. State regulations require child care facilities to see to it that employees receive at least 24 "contact hours" of training each year. The U.S. Department of Labor (DOL) takes the position that such training is compensable. DOL explains that since the obligation is on the employer to get the employees trained, the training is not really voluntary and thus represents hours worked. Of course, if a child care worker voluntarily attends additional training beyond the minimum requirement outside working hours, such time would not normally be compensable. Employers in that industry are allowed to apply time spent in mandatory staff meetings devoted to child care issues toward the 24-hour requirement. Since DOL also prohibits employers from making employees pay for the minimum standard training courses (see "Deductions for Other Costs to the Employer" in the article "The Texas Payday Law - Basic Issues"), child care organizations would want to take advantage of their right to specify the times and places where compensable training will take place. That means that employers can notify employees that if they decide on their own to go to some expensive training at some out of the way location, neither the time nor the course would be paid. Finally, if a child care teacher has already satisfied the training requirement for the year, no additional training is necessary within that year if the worker is hired by another child care facility.
The converse of the child care training situation is true for continuing education requirements related solely to the ability of an employee to practice a particular trade or profession, as long as the training is of general applicability and is not designed to fit a specific job with a specific employer (see DOL Opinion Letter WH-504, October 23, 1980). Such training is "portable" and allows the person to find work in that trade or profession with any employer or even on their own. Of course, many of the above types of employees would qualify for an overtime exemption in any event.
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