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Posted: February 25, 2014

Training time: To pay or not to pay?

That is the question -- and here's the answer

Kalen Fraser

Employers are often confused about training time and whether or not it must be paid. Training can take many forms including: new employee orientation, a weekly staff meeting, a yearly Las Vegas conference, a training webinar, a college course, etc.

As a general rule training time must be paid. However, if it meets all of the following four criteria, then the time would not be considered work time under the Fair Labor Standards Act (FLSA) and does not need to be paid.             

1. Attendance at training is outside of employee’s regular work hours AND

2. Attendance is voluntary AND

3. The training is not directly related to the employee’s job AND

4. The employee does not perform any productive work during the training

The trickiest of the four factors is usually No. 2 (attendance is voluntary). Picture the following:

A company sends out a memo that lists the employees who are scheduled to attend the monthly company training on Nov. 26 with a note that says, “If you can’t attend on the 26th, you may attend a substitute training on the 29th” and lists the subject matter that will be discussed including: company policy on safety equipment, how to work new GPS systems, paperwork requirements for new BlueBird project, etc.  In small letters at the bottom of the memo it says “Attendance is voluntary”.  Do you think attendance at that meeting is truly voluntary? No, probably not.

An example of a training that would not be considered work time is the following: 

A company offers “Marketing 101” to its 600 lower-level employees from 6-8 p.m. every other Wednesday. The curriculum for the classes corresponds closely to a Marketing class offered at the local community college. Any of the lower level employees may attend.  They learn general marketing skills (not just applicable to this company). They don’t do any productive work (i.e. strategic plans for the company, marketing calls, etc.) Employees who don’t attend are not punished (i.e. not eligible for a certain bonus). The employees who go to the Marketing 101 classes could include it as general training/knowledge on a resume.

The four criteria mentioned above determine whether training time must be paid under federal law found in the FLSA.  If you think you have training that you don’t have to pay for, make sure it meets these four criteria as well as any requirements found in your state labor regulations.  The Colorado Minimum Wage Order doesn’t specifically address training time. However, it does state that work time includes any “time during which an employee is subject to the control of an employer”.

Kalen Fraser is the President/CEO of The Labor Brain Inc., a labor law consulting firm located in Fort Collins.  Ms. Fraser worked in the U.S. Department of Labor and conducted investigations on hundreds of companies to determine their compliance with federal labor laws including the Fair Labor Standards Act, Davis-Bacon Act, Service Contract Act, Family Medical Leave Act and the H2A and H2B guest worker programs.  She created The Labor Brain to respond to a growing need in the business community for expert guidance on how labor laws are enforced. She can be reached at kalen@laborbrain.com. More information on the The Labor Brain is available at www.laborbrain.com.

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