By: Paul Sutherland
Recently we have seen an uptick in the amount of questions that are being asked surrounding the training of employees. The typical question that is asked of us is whether or not the employer is required to pay the employee for attending a training. The answer to that question is a resounding… maybe? Each situation is going to be fact specific. There is no one size fits all requirement at the federal level and each state may have its own rules and interpretations. For that reason, we won’t discuss state rules here and will focus on what the federal Department of Labor’s Wage and Hour division has promulgated.
Lucky for us, the DOL has a regulation on the general principle of employee attendance at lectures, meetings, and training programs. 29 CFR § 785.27 states that “Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if the following four criteria are met: (a) Attendance is outside of the employee’s regular working hours; (b) Attendance is in fact voluntary; (c) the course, lecture, or meeting is not directly related to the employee’s job; and (d) the employee does not perform any productive work during such attendance.”
In an attempt to clarify its intention, the DOL then created regulation 29 CFR § 785.28 which instructs that “Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.” As such, whether attendance is voluntary or involuntary is based on the subjective intent of the employee. For this reason, most companies elect to err on the side of caution when it comes to employee training and compensate the employee in the form of wages. If you feel that you have had wages unlawfully withheld while training for your employer, or that you may have inadvertently withheld wages from your employees, it is recommended that you speak with an employment attorney to understand what your legal claims or obligations may be so that you can make the decision on how you would want to proceed.
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