Virtually all hospitality employers are aware that pursuant to the Fair Labor Standards Act (“FLSA”), they are required to compensate employees for all hours worked. What is not as clear, however, is whether the time an employee spends at training programs, lectures, meetings, and other similar activities should be considered hours worked. As a result, our clients in the hospitality industry often ask whether they are required to compensate employees for time spent in such training activities.
The short answer to this question is that an employee’s time spent in training sessions should be considered “working time” and thus is compensable, unless the following four factors are met:
a) Attendance is outside of the employee’s regular working hours;
b) Attendance is voluntary;
c) The training is not directly related to the employee’s job; and
d) The employee does not perform any productive work during the training.
This “four-factor test,” however, is not as straightforward as it may seem. Indeed, as demonstrated by the below “Common Employer Inquiries and Responses,” these factors contain many nuances that may make it difficult for an employer to easily determine whether training time should be compensable.
Common Employer Inquiries and Responses
i. How should an employer determine whether attendance at a training session is outside “regular working hours?”
By default, some employers interpret the term “regular working hours” to mean the typical, standard hours of 9:00 a.m. to 5:00 p.m. As a result, these employers automatically compensate all employees for any training that takes place during these hours, even for those who do not work this standard schedule. Such an interpretation, however, may result in significant overpayments to your employees. The term “regular working hours” refers to the particular shift worked by an individual employee. Thus, if a waitress regularly works a shift from 2:00 p.m. to 10:00 p.m., the restaurant employing her would not be required to compensate her for attending a training session from 9:00 a.m. to 11:00 a.m. (assuming all three other factors were satisfied), since the training session would be outside of her specific regular working hours.
ii. How can an employer ensure that attendance will be considered “voluntary”?
The Department of Labor (“DOL”) classifies training as “voluntary” if (1) the employer does not require the employee to attend the training; and (2) the employee is not led to believe that her employment would be adversely affected if she does not attend the training. If an employer takes an adverse action against the employee as a result of her failure to attend the training, attendance clearly is not voluntary and the employee must be compensated. Therefore, an employer should explicitly convey to its employees that any voluntary training is not required and ensure that its supervisors and managers do not give any indication that non-attendance will result in an adverse employment action against the non-attending employee.
iii. When is a training considered “directly related to” an employee’s job?
Of all the factors set forth in the four-factor test, the question of whether training is directly related to an employee’s job generates the most employer uncertainty. In short, training is directly related to an employee’s job if it is designed to make her more effective in her position or to teach her something new she needs to know to perform her current job duties. Conversely, training is not directly related to an employee’s job when its primary focus is to prepare an employee for advancement or train her for another position, even if it results in incidental improvement to an employee’s ability to perform her regular duties. Furthermore, training is not considered to be directly related to an employee’s job when an employer’s non-mandatory training program is of general applicability and corresponds to courses offered by independent, bona fide institutions of learning.
Questions often arise as to whether non-mandatory training offered by the employer to facilitate attainment or renewal of a license, permit or certification is directly related to an employee’s job. For example, a hotel or spa may offer non-mandatory training sessions to its masseuses so that they can obtain their required licensure as massage therapists. Although the training would arguably make an employee more effective in her position as a masseuse, the program is of general applicability and corresponds to courses offered by other entities in accordance with the requirements of the state licensing division. Moreover, while the employee’s receipt of the license is mandatory, the employer’s training program is non-mandatory, as it is simply one means of achieving the required documentation. Consequently, as long as the training offered by the employer corresponds to the requirements outlined by the state licensing division, an employee’s attendance at the employer-sponsored program would not be compensable.
iv. What type of work performed during training constitutes “productive work”?
The DOL defines “productive work” as any work that an employer is able to use for business purposes. Therefore, so long as an employer does not permit an employee to actually perform work that could benefit it during the training session (as opposed to simply learning to perform such work), an employee would not be considered to have performed productive work during the training.
Although the FLSA creates a presumption in favor of compensation for training sessions, there are many instances in which an employer in the hospitality industry is not required to pay employees for such time. As a result, hospitality employers should consistently evaluate their policies and practices regarding their training sessions to ensure they are not compensating employees for time when there is no obligation to do so.