Workers required to attend ‘voluntary’ training? Be prepared to pay nonexempt employees

Do you require or strongly rec­ommend that employees attend training sessions outside their regularly scheduled shifts? If training participants are hourly employees, chances are you will have to pay them for their time.

Simply calling the training voluntary isn’t good enough if the employees believe they would suffer adverse consequences for skipping the sessions.

Recent case: Rosa Nehmelman was a casino dealer working for an hourly wage. She sued, alleging that she had not been paid for the time she spent in what she called mandatory training sessions.

She brought the case on behalf of other dealers, contending they were similarly situated and affected by the same company policy that required dealers to learn new games of chance outside normal work hours and with­­out receiving their hourly pay or over­­time.

The casino argued that under the Fair Labor Standards Act, only hourly employees who are required to take training sessions have to be paid for that training. It also argued that even mandatory training that taught new skills was exempt from the rule.

FLSA Compliance D

In this case, it said the training ­sessions were recommended, but not required. Plus, it argued, learning new games was acquiring a new skill, not improving on an old one.

The employees argued that the company required the training and criticized anyone who dropped a course.

In addition, they said that if they didn’t take the courses, they would be criticized for lack of enthusiasm at performance review time.

The court said the case could go forward as a class action. The em­­ployees will get a chance to prove that training was mandatory and related to their jobs. (Nehmelman, et al., v. Penn National Gaming, No. 11-C-23, ND IL, 2011)

Final note: On-site college classes are an example of training that typically does not have to be paid because it prepares employees for different jobs. That’s true even if the classes benefit the employer.

How to tell if training is mandatory

Here are some conditions that indicate “voluntary” training is really mandatory:

  • Job postings indicate employees must be willing to learn things that training sessions cover. In this case, dealer job postings specifically stated that job applicants must be “willing to learn all games offered in the casino” and that the training sessions taught those games.
  • Employee reviews list the subject of the training sessions as subject matter that the employee should master during the coming year. In this case, employees were encouraged to learn new games so they could work more stations on the casino floor.
  • Employees are led to believe that not participating in the training will have adverse effects like poor performance review, assignment to less desirable shifts or tasks, termination or demotion. The employees in this case testified that they feared they wouldn’t be considered valuable employees unless they took the courses and learned new games.
  • The training is designed to make the employee more effective at a current job, rather than preparing for a new position or promotion.