Q: I WORK as a trainee for a company and have to undergo training for three to four months before being considered permanent. The company pays trainees an hourly rate but it does not pay for work beyond 8 hours. Am I entitled to additional pay or overtime?
A: Yes, to the extent that you are an employee who is in training by the employer.
Employers engage in training programs for either of two reasons: 1) to train employees or 2) to train persons not on the employer’s payroll. Employees who are in training by the employer and who attend lectures, meetings, and training programs must be paid for the time they do so if all of the following factors are present:
1) Attendance to these training activities is during the employee’s working hours;
2) Attendance is mandatory or required or the employee is made to understand that non-attendance would adversely affect the employee’s employment;
3) The program is directly related to the employee’s job with the primary purpose of making the employee more efficient at doing his or her present job; and
4) The employee is performing productive work during attendance at the program.
The above criteria must be applied not only to in-house programs but also to programs conducted by outside organizations on behalf of the employer or at which the employer requires attendance.
When a training program is conducted for persons not on the employer’s payroll, a question arises as to whether these persons are employees. If they are considered employees, then such persons must be compensated in the same way as other employees. Trainees or students not on the employer’s payroll will not be considered employees if the trainees or students work for their own benefit without any express or implied compensation. Trainees working for their own benefit may mean that the trainees are in training as part of an educational curriculum, or they are acquiring further knowledge and skills to qualify for work in a similar business. The emphasis on the training program is education and not employment.
Trainees are not employees if they meet all of the following criteria:
1) The training, even though it includes operation of the employer’s facilities, must be similar to that given in a vocation school;
2) The training must be for the benefit of trainees;
3) The trainees must not displace regular employees but must work under their close observation;
4) The employer providing the training must derive no immediate advantage from the activities of the trainees, and on occasion its operations should actually be impeded;
5) The trainees must not necessarily be entitled to a job at the conclusion of the training period; and
6) The employer and the trainees must understand that the trainees are not entitled to wages for the time spent in training.
If any of the above criteria is not satisfied, then the trainee is considered an employee and must be compensated accordingly.
Now, an employee on training may be considered a “probationary” employee pursuant to the employer’s personnel policies. Generally, probationary employees are entitled to the same employee protections that cover regular employees. This means that even though the employee is still on a “probationary” period the employer is still required to follow minimum wage, worker’s compensation and discrimination laws regarding that employee.
Therefore, employees who are considered trainees or probationary, and who work more than 8 hours per day or more than 40 hours per week must still be paid 1.5 times their regular rate (“time and a half”) for all work in excess of 8 hours per day. If they work more 12 hours per day or more than 8 hours on the seventh day, they must be paid double 2 times their regular rate (“double time”).
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the followaing areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
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