Paying Employees for Initial Training and Job Interviews

It would be nice if we lived in a world where we hired employees, and they not only knew how to do the job from day 1, but they knew everything there is to know about your business and how it runs, from day 1.

But the reality is that even if you hire the most qualified candidates out there, they still need some training, onboarding, mentorship, or just to go through an introductory process, to get used to your company, its processes, and its policies and procedures. The employee may even have to be completely trained on how to do the entire job from start to finish.

Is it Working?

And that begs the question of whether you have to pay the employee for that time.

On the one hand, it’s working; the employee is there, at work, and isn’t free to do what he or she wants. But on the other hand, the employee isn’t quite yet doing the actual job he or she is supposed to be doing.

Pre and Post Employment Tasks

The good news is that as a general rule, anything the employee has to do as a condition of being hired, pre-employment tasks, does not have to be paid. So, things like interviews, computer tests, or filling out any types of forms, would not have to be time paid to the employee.

But after employment, the employee does have to be paid, even if the work the employee is doing is just “training.” This would include things like making employees watch introductory or training videos, shadowing other employees, doing training for office software, or things like that.

If the employee is doing things to help him or her learn, or perform the job, the employee must be paid. If it’s anything the employee must do just to get the job, it does not have to be paid.

Courts Look at Circumstances

Remember that you don’t have to send the employee an official communication saying “you’re hired.” Courts won’t look at whether you subjectively considered the employee to be hired, courts will look to the facts and circumstances to evaluate whether the employee was engaging in pre-employment or post-employment activities.

Probationary Periods

This does leave room for ambiguity, especially in situations where an employee is “probationary.” It may be tempting just to call an employee that, just to avoid having to pay the employee for the training time.

But once again, courts will look at the facts and circumstances, regardless of whether you called the employee hired or probationary or something else. And generally, probationary means that the employee is hired, at least, temporarily, meaning the employee must be paid for the time spent on training and onboarding. At that point, you are no longer evaluating the employee for hire; you’re evaluating whether the employee remains hired.

Employment legal errors can be costly. Let us help you try to avoid them. Call our West Palm Beach commercial litigation attorneys at Pike & Lustig to help.

Source:

classaction.org/media/martinho-v-amazoncom-inc-et-al.pdf