Before Thanksgiving, we discussed when for profit, non-profit, and public sector employers may accept volunteer service from employees. One of our readers, an HR director at a telecom company, pointed out that there is one other kind of “volunteer” service that often presents difficult questions for employers: whether to pay employees for attending lectures, training, or meetings that are separate from the pre-shift meetings we have discussed in past posts. In some situations, the FLSA regulations may not require you to count as hours worked the time that your non-exempt employees spend attending lectures, training, and meetings. Before marching over to the payroll department, though, keep a couple of things in mind.
Employee Relations Should Come First
From employers’ perspectives, I understand that training can be expensive, and that it represents a substantial investment in your employees. Before looking for ways to spend less on paying employees for time spent in those events, I always encourage employers to think twice. The monetary investments in training and paying employees to attend training will pay off. How?
- Training helps your business run efficiently. Better trained employees are better equipped to tackle whatever comes their way without sacrificing quality or efficiency.
- With the economy bouncing back, employer-provided training is a great recruitment tool. Offering employees the opportunity to acquire new, portable skills and training can be as attractive or more attractive than simply raising an hour rate.
- Studies have consistently shown that job training promotes employee satisfaction. The more engaged and satisfied your employees are, the more their success will align with your business’s success.
Finally, training is an excellent retention tool because it breeds loyalty and commitment. Employees are more likely to stay with your company if you have offered them more than just a paycheck or a stagnant career.
The FLSA on Training, Lectures, and Meetings
My soapbox speeches aside, the FLSA regulations do specify that an employee’s time attending a meeting, seminar, lecture, or training need not be counted if:
(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.
Outside of Working Hours
This is the easiest requirement to understand. If the employee attends the class, training, or meeting at night, on a weekend, or at another time when he or she is not normally scheduled to work, then this requirement is met. Simply excusing an employee from work to attend training does not meet this requirement, though.
The FLSA regulations go on to state the obvious: if you require the employee to attend the lecture, training, or meeting–even if you give them the choice of when to do it–then it isn’t voluntary. If you are not sure if the employee’s attendance is voluntary, ask what action you would take (if any) if the employee did not do so. If the employee would suffer any kind of adverse action (discipline, discharge, loss of pay, delay or denial of a raise/promotion or other opportunity, loss of job duties, etc.), then attendance is not voluntary.
Directly Related Training
Employers most frequently encounter problems with this third element. To be non-compensable, the training must be unrelated to the employees’ present job duties. The FLSA regulations are as clear as mud on this point. Training can be related to the job, but must not be targeted to helping employees perform their current job duties more effectively. If the training will help the employee gain a new certification, a new skill, or a more advanced skill, then the training may not be directly related for purposes of this third test. This factor lends itself to examples, which I’ll share after the Thanksgiving holiday.
The final test can be a bit tricky as well. Work that is just for practice as part of training that an employer cannot use is not “productive work.” On the flipside, if the employer will use the work product produced during a lecture, training, or meeting, then it is work that the employer must compensate the employee for doing.
There are special rules that apply to apprenticeship programs and public sector employees, so anyone in those situations should not rely on the four criteria above in analyzing their situation without considering these rules as well.
Upshot for Employers
Setting aside the employee relations issue, employers who send employees to attend work-related meetings, seminars, lectures, or training normally must count those hours as hours worked for purposes of FLSA minimum wage and overtime calculations. However, this is not a hard and fast rule. Some activities will meet the four-part test above, but employers would be well advised to get an opinion first before making the decision to exempt a meeting, seminar, lecture, or training from compensable hours.