We were recently asked by a client to provide guidance on the wage and hour issues associated with company-provided on-line training programs for non-exempt employees. Questions were raised as to when the training is "voluntary" and whether the time must be compensated if the training is completed at home using a personal computer. The answer stems from federal wage and hour law, which provides that such time is likely compensable for non-exempt employees.
The Fair Labor Standards Act requires employers to compensate employees for all hours worked regardless if the work performed is on or off the job site. Consequently, most time employees spend in training programs is compensable hours worked. Attending training is not compensable, however, if all of the following four criteria are met:
1. Attendance is outside of the employee’s regular working hours;
2. Attendance is in fact voluntary;
3. The training is not directly related to the employee’s job; and
4. The employee does not perform any productive work during such attendance.
Typically, it is the second and third factors that generate most of the wage and hour issues associated with employee training.
First, training is not voluntary when it is required by the employer, or the employee understands or is led to believe that non-attendance would negatively affect his/her present working conditions or the continuance of his/her employment. Therefore, for attendance to be voluntary, employers must not directly or indirectly pressure employees to attend training programs, or impose employment-related consequences for non-attendance.
Second, training is not directly related to an employee’s job when the training is designed to prepare the employee for advancement or promotion. Conversely, training intended to improve employees’ efficiency and/or effectiveness in their current jobs is directly related to the employees’ job.
If an employer offers online training outside paid working hours and do not want to pay non-exempt employees for their time spent on the training, employers should do the following:
· Restrict employees’ participation in the training to non-working hours only;
· Do not mandate employees’ participate, explicitly or implicitly;
· Do not impose adverse consequences for employees non-participation;
· Do not condition employees’ continued employment on completing the training;
· Analyze the training to ensure it is designed to qualify employees for a new job or promotion (and is not intended to enhance employees’ current job skills); and
· Ensure the employees do not perform other work during the training.
If all of the above factors are not satisfied, then employers must compensate their employees for any time spent completing the online training. Because the requirements for providing non-compensable training are particular and precise, and the cost of non-compliance can be costly under the FSLA for unpaid time and/or missed overtime, the conservative wage and hour approach is to offer online training during paid working hours.