If you are a California employer that uses interns, or provides training to individuals that could lead to employment, you run the risk of having these individuals qualify as “employees”. And with “employee” status, it may require you to comply with Labor Code requirements dealing with minimum wage, overtime pay, and meal and rest breaks.
The authority in this matter, the California Labor Commissioner's Office, also known as the Division Labor Standards Enforcement (DLSE), considers the following eleven factors when determining whether training time is compensable under California law:
- The training, even if it is at the employer's business and includes operation of the employer's resources, is similar to that which is given in a vocational school;
- The training is for the benefit of the trainees or students, not the employer;
- The trainees or students do not displace regular employees, but work under their close observation;
- The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, the employer's operations my even be impeded;
- The trainees are not necessarily entitled to ta job at the conclusion of the training period;
- The employer and trainees or students understand that the trainees or students are not entitled to wages for time spent training;
- Any clinical training is part of an educational curriculum;
- The trainees or students do not receive employee benefits;
- The training is general, so as to qualify the trainees or students for work in any similar business, and not specifically for a job with the employer offering the program;
- The screening process for the program is not the same as for employment, and does not appear to be for that purpose, but involves only criteria relevant for being accepted into the program;
- Advertisements for the program specify clearly that the program is for training or education, not employment. However, employers can specify that qualified graduates will be considered for employment.
The Labor Commissioner's Office has opined that part of the analysis is that the employee does not have to be paid for voluntary attendance at training programs. Examples situations of this nature the Commissioner's Office cites include English language instruction or literacy training.
Who is responsible for costs of training programs?
The DLSE takes the position that there is generally no requirement that an employer pay for training leading to licensure or the cost of licensure for an employee. While the license may be a requirement of the employment, it is not the type of cost the employers are required to pay for under Labor Code §2802. The DLSE states that the most important consideration of the licensure is that it is required by the state or locality as a result of public policy: “It is the employee who must be licensed and unless there is a specific statute which requires the employer to assume part of the cost, the cost of licensing must be borne by the employee.” However, if an employer requires an employees to undergo training that is specific only to that employer, then the employer would usually need to bear the training costs.
Questions about Compensation for Training?
If you have questions about compensable training time under California law, don't hesitate to contact leading California employment lawyers from Kingsley & Kingsley to take advantage of a free initial consultation. To discuss your situation call us at (818) 990-8300 or click here to contact us regarding your case.