Are employees entitled to overtime pay for time spent in training? This is a fairly common question overtime lawyers are asked by workers in a wide range of industries, and for good reason – many employers fail to properly account for the hours spent in training when determining overtime pay.
Under the Fair Labor Standards Act (FLSA), an employee does not have to be paid for training time only if all 4 of the following criteria are met:
- Attendance is outside of the employee’s regular working hours
- The employee’s attendance is voluntary
- The course, lecture, or meeting is not directly related to the employee’s job; and
- The employee does not perform any productive work during the training
If any of these 4 criteria are not met, then the training time must be treated as work time. This means the employer must pay for the time and must include the training time in total hours worked when determining overtime pay.
If an employer requires that an employee attends the training, the training will not be considered voluntary. In addition, if the employee believes they would be subject to adverse action, such as poor performance ratings or demotion, if they fail to attend the training, it may not be considered voluntary even though the employer claims it is.
If the training helps an employee handle her job more effectively, it will be considered directly related to the employee’s job. Alternatively, if the training prepares the employee for a new job or additional skill, it will not be directly related to her job.
Example 1:
An employee is hired as a sales representative. The employer requires that the employee completes an online training course that familiarizes the employee with the company’s products and the sales scripts used when talking to potential customers. The employee is told to complete this online training at home after leaving work.
This training time will be considered work time because it does NOT meet ALL 4 criteria listed above.
| Attendance is outside of the employee’s regular working hours. | YES |
| The employee’s attendance is voluntary. | NO |
| The course, lecture, or meeting is not directly related to the employee’s job. | NO |
| The employee does not perform any productive work during the training. | NO |
Example 2:
An employee works as a bookkeeper. She decides to enroll in a community college course for an online accounting program so she can meet the requirements for a better-paying position within the company. She takes this course at night and on weekends.
This training time will NOT be considered work time because it meets ALL 4 criteria listed above.
| Attendance is outside of the employee’s regular working hours. | YES |
| The employee’s attendance is voluntary. | YES |
| The course, lecture, or meeting is not directly related to the employee’s job. | YES |
| The employee does not perform any productive work during the training. | YES |
In the recent Cutco case, the employer agreed to pay $6.7 million to settle an overtime pay lawsuit against it for unpaid training time. The employees, in this case, were required to attend a mandatory training session for 3 to 5 days to become knife sales representatives; however, they were not paid for this training time. The employees were being trained to replace sales representatives that no longer worked for the company. The plaintiffs (employees) argued that they should be paid for this training time and that training time should be counted toward total hours worked for overtime purposes. They claimed the training was not voluntary because they were required to attend it.
In addition, they claimed that the training was not vocational sales training and did not provide the employees with transferable skills that could be used in other employment; i.e., the training was directly related to their job. If the employees’ claims were found to be true, all 4 criteria listed above would not have been met and the training time would have been considered work time.
If you have questions about mandatory training that you are not being paid for, please contact us for a free and confidential case evaluation. You may call us at 1-866-559-0400, email us at mlore@overtime-flsa.com or submit your information using our convenient Case Evaluation form.
