Employers are frequently sued for not paying employees for pre-employment training. There is no such thing as “pre-employment.” All trainings are considered employment training.
By: Brad Nakase, Attorney
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Shauna is the manager of a robotics company in San Pedro. When Shauna hires a new employee, Damian, she asks that he come in for a one-week training course prior to his start date. During that course, Damian learns how to use the company’s computer software, and he gets started on his first project with a robotics team. Shauna does not pay Damian for the pre-employment training. When Damian askes to be paid for the pre-employment training, Shauna tells him that because he hadn’t officially started work yet, he did not qualify for compensation. Damian hires a lawyer and sues Shauna for not rightfully paying him for pre-employment training.
Under California law, all non-exempt California workers must be paid for all hours during which they work. If an employer denies an employee compensation for work, he or she may face a lawsuit for violating California labor laws.
Whenever a California employee is required to be somewhere or do something for their job, they must be compensated. If an employee has to attend a required meeting or do mandatory training, he or she has to be paid. Regardless of whether the meeting or training is held at the office, off-site, or online, the employee is entitled to payment. Even if the work is “non-productive,” meaning it is not related to the job or of no value to the company, it must be paid if the employer has asked the employee to do it.
When it comes to compensation, employees who attend mandatory training, whether pre-employment or post, must be paid their standard wage. If the training goes past the employee’s work hours (more than eight hours in a day), the employee is entitled to overtime pay. If there are additional work-related expenses, the employer is also responsible for covering these costs.
Example: Rivka is hired by a real estate office. Before she starts work, her new boss asks her to complete a three-hour online training course at home. Rivka asks if she will be compensated for doing it. Her boss angrily argues that because she is not doing any work for the company, she is not entitled to payment. However, because the pre-employment training is required and related to Rivka’s job, she must be compensated. Even though Rivka has not officially started work, she is entitled to be paid for her training.
The Federal Fair Labor Standards Act (FLSA) has created guidelines establishing what qualifies as payable worktime. According to the FLSA, employees must be paid for training unless all of the following apply:
Under California law, employers do not have to pay prospective employees for “try-out” time. This is time spent analyzing a candidate’s skills, normally during the interview process. However, employers must pay prospective employees for “try-out” time if the following is true:
Example A: Gregorio is applying to work as a chef at an Italian restaurant in Beverly Hills. During the interview process, Stefano, the manager of the restaurant, asks Gregorio to demonstrate his cooking skills. Gregorio prepares three of his favorite dishes to be tasted by Stefano and the sous-chef. Stefano tells the candidate that his food is excellent and gives him the job. He does not pay Gregorio for making the “try-out” dishes. This is legal. Stefano didn’t use the time to train Gregorio, nor did he use the food for profit. It was simply to test Gregorio’s skills as a chef.
Example B: Elise is applying to work as a receptionist at a doctor’s office in Carson. During the interview process, Xavier, her would-be manager, asks Elise to do a trial day to see if she can do the job. For eight hours, Elise answers phones, prepares new patient files, enters data into the doctor’s filing system, and makes appointments. Xavier decides not to go forward with Elise’s application, and he does not pay her for the eight hours of pre-employment work she did. This is illegal. Elise completed a full day of work during which she performed valuable skills for the benefit of the company. Under California law, Xavier must pay Elise for her work.
Blog: Business | Corporate | Employment Law
