When Unpaid Training Doesn’t Feel Voluntary at All

Posted June 8, 2018 7:16 p.m. EDT

Q: I work for a 25-person company, and in most ways I am quite happy with my job. There has been room for advancement, the projects are varied and interesting, and the people are fun to work with.

My problem is we have weekly training sessions during our lunch hour concerning the computer program we use for all of our projects. These sessions, which are designed to make us more efficient and consistent, are “highly encouraged but not required.” Those of us who are “encouraged” to participate are paid for 40 hours per week (anything beyond that is overtime), and we’re told that we cannot count the training hour as part of our 40 hours.

I think it is useful training, but it means I do not get a break on those days, and I resent losing my small amount of personal time in the middle of the day.

If I skipped the training regularly, I would miss important information that makes me able to do my job effectively. In other words, this doesn’t feel just “highly encouraged”; it feels required. So I want the hour of work to count as an hour of work.

Is there a good way to work out this issue? Or should I just continue to seethe a little bit each week and keep quiet? — LEAH

A: Even controlled seething is never the best long-term option. But your frustration is understandable, because your company’s position on this training — you don’t have to participate, yet you feel skipping it will hurt your performance — sounds murky. To figure out your best strategy, it helps to understand the broader context.

A lot of people are paid hourly. In 2017, about 58 percent of all American workers were, according to the Bureau of Labor Statistics, and most were eligible for overtime.

A pretty clear-cut federal regulation most likely applies in this kind of situation, said Allan Bloom, a partner at Proskauer, the law firm, who specializes in employment and labor law.

In short, the rule defines a four-part test for what kinds of activities an employer can ask and reasonably expect an overtime-eligible worker to participate in without payment.

Any voluntary activity — meetings, lectures, training sessions and so on — must occur outside regular working hours; really be fully voluntary; not be directly related to the employee’s job; and not involve performing any actual “productive work.” State laws might add to this framework.

Your training seems at odds with some of these criteria. While it occurs during a lunch hour, Bloom noted, it is smack in the middle of the workday, and that alone, he said, might give workers “a pretty good argument that they should be paid.”

Moreover, training on a computer program you use routinely seems designed to improve your regular work, added Elizabeth Tippett, an associate professor at the University of Oregon School of Law who has studied wage and ethics issues. “If it is related to your job, you’re supposed to be paid,” she said.

And finally, there’s at least some ambiguity about how voluntary the sessions feel.

Given all this, I think it’s worth bringing the matter up with your employer. (Remember that The Workologist is not an attorney, and the legal experts I spoke to cannot offer specific advice.)

Ideally you’d go to human resources, or the company’s legal department, and seek some clarity. Your company may be too small for that, so you might pick the manager you think is most likely to be sympathetic or at least sensitive to the underlying issue. Explain that you want to do your job as well as possible and that attending these sessions helps — but that this suggests the time ought to be paid.

You needn’t level accusations, or make this in any way confrontational. “A lot of companies that are well intentioned don’t know there’s an issue,” Bloom said.

So given that your workplace culture as described sounds generally positive, you’re probably better off making “a business argument,” as Tippett put it.

For example, you might say something like: “Clearly you want us to invest time in our skills so that we’re more effective. I’m willing to give my lunch hour over to that investment. Can you meet me halfway and compensate that time? That way we’re both contributing.”

If you belong to a union, of course, you always have the option of pursuing the matter through that channel.

These concerns are also important for employees who receive a flat salary, rather than hourly wage, though the legal specifics are different and the details may be complicated.

Most such workers are not eligible for overtime and are considered exempt from the relevant regulation that we’ve discussed here. Even so, any worker (or manager) who feels there’s a mismatch between duties and pay can always negotiate — perhaps using some of these same arguments.

It’s worth trying to show management that there is a way for employer and employee values to align. In a tight labor market, no company benefits from employees who are quietly seething.