Best Wage And Hour Attorney Reply: Does my boss have to pay me overtime for training at work? Can my manager tell me to stay late without paying me extra? What should I do if my supervisor makes me go to training classes without paying me? I went through a lot of training to get certified, does my boss have to pay?
I was thinking about different topics I could write about for this blog post. Sure, the laws change, and occasionally there is a court decision that really makes waves in the employment discrimination community. As I was shivering getting my car started going to work in this polar vortex and freezing my arse off, I started to think back to the most fun and warm job that I ever had. And, while being an employment law attorney is great and rewarding to help employees and workers across Ohio, this is not the warmest job. When I was growing up, I worked at the local pool every summer as a lifeguard. It was a great job. I got to get a tan, swim a lot, see my friends while I was working… what’s there not to love? What I didn’t mention was the training. In order to work for this particular city pool, all potential lifeguards had to complete 30 hours of “in pool” training and 15 hours of class time. Then once that was over and we were certified, we had to complete an additional 30 hours of customer service training and facility specific training. That’s 75 hours of training before the job ever starts that happens every year before the pool opens. I honestly didn’t mind the training. Like a lot of other jobs, training is required so employees can provide the appropriate level of service to patrons. What I did mind, was that we weren’t paid for any of it.
I was 16 when I asked my manager why we didn’t get paid for anything for training. He responded that technically we weren’t employees yet, and that the 75 hours of training were kind of like a “try out.” Even though if you didn’t pass your certification the first time, they would just keep re-testing you until you passed. At the time, this didn’t strike me as odd. I was 16, sure it was a hassle and 75 hours of training is kind of a lot for a teenager, but I sure loved the job and my co-workers, so I didn’t really mind. It wasn’t until much later that I really started thinking about how much time, and money I was denied over the years. Sure, that happened when I was a teenager, and as much as we would all like to think that times have changed, and employers have “wised up” the fact of the matter is, that employers still do this all the time.
The Fair Labor Standards Act (“FLSA“) requires covered employers to pay nonexempt employees at least the federal minimum wage for all hours worked and overtime pay for hours worked over 40 in a workweek. The federal law contained at 29 CFR 785.27 expressly provides:
Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:
(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.
As our overtime attorneys have previously blogged about courts look to the four factors above when deciding if you were supposed to be paid for training. (see Top Overtime Lawyer Reply: Can I Be Forced To Go To Meetings Without Being Paid?). It’s important to keep in mind that only some of my past employer’s conduct was probably illegal.
When thinking about the situation that I experienced, it’s important to keep in mind that this particular pool wasn’t incorrect when they didn’t pay me for my time spent actually earning my certification to be life guard. There’s a tiny loophole (which may be taking advantage of workers where special certifications are required) where employers don’t have to pay for employees’ time if they are working towards a certification. Training is not considered to be directly related to an employee’s job if it is offered by independent, bona fide institutions of learning. So, in my case, even though I needed a life guard certification to work for the pool, the certification was conducted through a separate, independent company whose sole purpose was to give these certifications. In other words, it didn’t matter that my managers taught the course because theoretically, I could have gone to any of these certification courses around the county, got my certification and then worked at the local pool.
The take away from that is just because my employer offered to facilitate the renewal of my lifeguard license and permit, does not mean that they are required to pay for my time, WHICH SUCKS.
So, now let’s turn to the service training required by my boss as the summer moved along.
I think the whole idea is that the courts aren’t willing to penalize employers for hosting certification classes. They are trying to serve their employees and make it more convenient for them to get certified and not have to potentially travel to a distant location to get the same training. So, I totally get, why the courts don’t force employers to pay for this type of training time. However, I’m always concerned when employers start blurring that line, and start adding in location specific training, or effectively start your employee training without paying the employee for their time.
Of course, if this was an office setting, a factory, a retail store or mostnormal work environments, this is simple. If an employer requires you to show up at a training session to learn about matters directly tied to your job, the employer must pay you for your time – and give you overtime pay at time and a half if it pushes your weekly hours over 40 hours. This is true even if the training is during lunch and the boss gives you free pizza.
This almost a little tricky for lifeguards at a recreational pool, however. As our wage and hour attorneys have blogged about before, the FLSA’s minimum wage requirement has an exemption under 29 U.S.C. § 213(a)(3) that excludes overtime and minimum wage protections the employees of certain amusement or recreational establishments that don’t operate on a year-round basis. This section of the FLSA has an exemption from minimum wage and overtime requirements for any employee employed by an establishment that is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center that either “does not operate for more than seven months in any calendar year,” 29 U.S.C. § 213(a)(3)(A), or, “during the preceding calendar year,” has “average receipts for any six months of such year [of] not more than 33 1/3 per centum of its average receipts for the other six months of such year.” Id. § 213(a)(3)(B). (See As A Seasonal Employee, Can I Be Paid Less Than Minimum Wage And No Overtime? I Need A Lawyer!; Can Amusement Park Workers Be Paid Less Than Minimum Wage? I Need The Best Wage Lawyer!; and Top Wage and Hour Lawyer Response: Is Everyone Entitled To Earn Minimum Wage?). A recreational pool that is only open four months out of the year, probably falls into this category. So, our lawyers may not be in the best position to help lifeguards or those rollercoaster attendants that tell you to keep your hands inside the car at all time, but for most working Americans, we are here for you.
Often, I think employers don’t intentionally cheat their employees out of training time in scenarios like this. Maybe they are just confused about the law, or think the law applies differently for some reason. However, this is never an excuse. Employers have an affirmative duty to educate themselves on the law and react accordingly. However, on occasion, we’ll hear from new clients about situations where the employee told their boss that they have to get paid and the boss flat out refuses. The boss might say things like, “Too bad,” “Get over it,” or “We can’t afford to pay people for training, they aren’t bringing in any money.” Well, this is wage theft, and for this group of employers, our overtime lawyers are their worst nightmare.
Our wage theft lawyers have dealt with bosses, managers and owners like this in the past and know exactly how to handle these tense situations. If your boss didn’t pay you for on the job training, or you are questioning if you should have been paid, you should contact a wage and hour attorney. It’s never easy standing up to a boss and asserting your rights. However, that’s why employment law attorneys exist. We are here to help you through this difficult process and protect your rights and hard earned, well deserved money. Our wage attorneys tell clients all the time that litigation is never easy. It’s tough, but at the end of the day it’s worth it because not only are you helping yourself, but you are helping future employees who will suffer less because you taught your boss a lesson.
If you are questioning what you should do, or if you should have been paid, come in and speak with one of our experienced employment lawyers. You work hard for your money and you shouldn’t have to go through defending your hard earned money alone.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for training,” “My paycheck is not right,” or “What do I do if my paycheck is short?”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.