Training Time: Paying the Nonexempt Employee ©

When must an employer pay a nonexempt employee for training time?  Any training for a nonexempt employee is paid unless a group of four exceptions exists.  Notice that I did not say “an exception.”  All four exceptions must apply for to avoid paying for the training time.  These are the exceptions:[1]

I.          Attendance must be outside of the employee's regular working hours,

II.          Attendance is in fact voluntary,

III.         Employee does not perform any productive work during such            attendance, and

IV.        Course, lecture, or meeting is not directly related to the employee's job.

Take George and Nick as example. Both are nonexempt employee working in a nursing care facility that specializes in Alzheimer patients. George handles patients, including those with Alzheimer, as part of his job.  Nick washes dishes in the facility kitchen and has no direct involvement with patients. Both attend seminars on the challenges that confront Alzheimer’s victims.  The facility management does not require employees to attend the training.  Sometimes seminars are held during regular working hours and the employer allows him to attend.  Other programs are held only at night, after regular working hours.

First consider training during work hours. George and Nick must be paid.  The fact that George attends voluntarily and performs no productive work while attending is not relevant. The training is during work hours and is directly related to his job.  Though the training is not directly related to Nick’s job, he attended during regular work hours.

What if the employer requires George and Nick to clock out so that they can attend the daytime training “off the clock”? The training is still during regular work hours and was authorized by the employer so it was not truly voluntary.  Clocked out or not, they are entitled to pay for the time spent in the training.

Now consider the training at night. The employer encourages attendance by George though it does not require it.  George goes to the training. Nick is merely curious and goes. Two exceptions apply to George. Attendance is outside regular work hours and involves no productive work.  However, the training is directly related to George’s job. Furthermore, it is not truly voluntary because of the encouragement. Therefore George’s attendance is payable time.  If George already worked forty hours for the week, hours spent in attending training at night is overtime.  Nick is not entitled to pay for his attendance time.  All four exceptions apply to him. His attendance is outside regular working hours, it is voluntary, he did not perform any productive work during attendance, and the training is not directly related to his job as a dishwasher.

Now consider the training at night without authorization or encouragement by the facility. All four of the exceptions appear to apply for George. Attendance is outside regular work hours and involves no productive work.  It is voluntary in that the employer neither authorized nor encouraged it. Furthermore the fourth exception might apply because the lack of authorization or encouragement could mean the training is not directly related to his job. After all, the employer determines the scope of the job and has, by not giving authorization or encouragement, determined that the training is outside the scope. On the other hand, this could be a narrow reading of the term “directly related to the job.” The best approach for an employer is to make clear to employees that training outside work hours requires authorization to be entitled to pay for the time. In addition to such a policy, the employer should not in any way encourage such after hours training. Encouragement could mean that the training is not voluntary; therefore the exception whereby the training must be voluntary would not apply.

Now let’s change the assumption with which we started.  Let us say the state requires the training rather than the employer.  For example, let us say the state requires that employees who handle Alzheimer’s patients in a licensed facility receive training.  If George receives a license from the state to do his work and the state requires that he engage in a minimum amount of training to keep his license, any training he engages in after-hours would be his responsibility and the employer does not need to pay him for those hours.  However, if the employer requires that George maintain his license to keep the job, the employer would need to pay George for the training time.  On the other hand, the states might make the employer responsible for maintaining staff training. The employer must then pay for the hours George engages in such training up to the number of hours mandated by the state.  If the employer requires George to engage in more hours than is mandated by the state, the employer would be obligated to pay for such excess training time.

Remember that paid training time is accumulated with all work time for calculating overtime.  So if during the workweek an employee performs his regular work for thirty-six hours and during that same week attends eight hours of training, he has engaged in forty-four hours of work.  This is forty hours at regular pay plus four hours of premium time and a half pay.