Training in this high skill business environment has become a vital part of any employee’s…and employer’s life and continuing education and retraining has assumed a larger and larger portion of the typical business budget. Whether an doctor or lawyer, a builder or auto mechanic, it is not unusual to have the employee devote days or even weeks to attending educational courses and these courses are often located in distant locales.
While employers are long used to paying the reasonable travel expenses for employees engaged in business, and, if non management, often overtime for the travel time, there is some hesitation in paying for weekend seminars or attending courses which are often given in exotic locations since the businesses giving the seminar select pleasant places to encourage attendance.
One client put it well: “This is more of a vacation for him than work. You telling me I have to foot the entire bill?”
That’s the topic for this article.
PAYMENT FOR THE SEMINAR AND TIME IN THE SEMINAR
The employer is required to pay for the cost of the education and for employee’s work time attending the seminar. This is considered part of the regular duties normally imposed upon employees and if the employer requires attendance, the employer must pay. (Note this is not necessarily true for a course the employee elects to take without employer requiring it. However, beware the argument that while the employer did not require it, the employer imposed the duty in a more subtle but effective manner. Any employer “recommending” a course should consult with legal counsel before making such a communication.)
Under CFR 785.27, “training time” is not reimbursable if it is outside of normal work hours, voluntary, and not directly related to the job.
If overtime is required normally legally for the employee, it will be required for any such hours devoted to the attending of the course. If overtime is not required for the employee, then overtime need not be paid for the course.
IF AN EMPLOYEE GOES TO A JOB-RELATED SEMINAR, DOES THE EMPLOYER PAY FOR THE TIME TO TRAVEL TO AND FROM THE SEMINAR?
Certain professions impose obligations on the professional and corresponding duty to pay on the part of the employer. For example, according to the California Business and Professions Code, Section 6720, members of a board of engineers will receive expenses as provided in Section 103. According to Section 103, each member shall be reimbursed for traveling and other necessarily incurred in the performance of official duties. Whether a seminar or educational requirement is an official duty is unclear, but the reader is advised to get legal advice if the employee is a member of a particular profession.
Both federal and state law governs wage and hour laws. (Advising CA Employers, Section 5) According to 29 CFR 785.33-785.41, all travel time during a work day except meal time, must be counted as work hours. The only travel time that would not be counted as work hours is the commute between home and work, or between home and the airport or home and the train.
In most situations, the “training time” or seminar is job related and if the employer is are paying for the employee to attend, then travel time would be counted as work hours and would have to be paid.
Most employees are eager to attend seminars knowing that it adds to their personal resume’ and stock of skills and is a welcome break from the usual duties of the job. Often employees will add vacation time onto the beginning or end of a seminar if it is located in a pleasant locale. This can lead the employer to become disgruntled or, just as often, lead other non-attending employees to complain as to the unfairness of providing this “fringe” benefit to an employee.
The employer must carefully consider the cost benefit of each seminar and not let the employee create pseudo extra vacation time by suggesting seminars of dubious value. One employer of our office actually telephones whoever is giving the seminar and cross examines the instructor to determine not only the hours required but what proof of attendance will be delivered. Another employer required the employee to prepare a “post training” report as to what she learned which was made available to other employees.
But most employers simply ensure that such training is available on a fair and appropriate basis and communicate effectively the actual business purpose so that there is no confusion in the minds of the employees as to the underlying rationale.
A favorite of employer of the author came up with an innovative way to ensure the appropriateness of attending a seminar at a golf course resort. The employee had to pay personally for each game played and all drinks in the club house rather than in the resort hotel. The employee felt it was fair and the employer’s only complaint was that the seminar improved the employee’s game more than it improved his selling skills.