Exempt employees are not paid overtime, they are payed a fixed amount each pay period irregardless of the number of hours worked. “Exempt” means they are exempt from the overtime rules set forth in the FLSA.

April 1st, 2009 at 11:42 am
John: Your responses appear authorative and professional. However, I do need further clarification.
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Let me answer those those issues that I can get support for very quickly.

Mike
You state: “Then time keeping will have to be done by the employee and accepted by the employer. It is the employer that has set this set of circumstances in motion knowing they do not have a ‘company’ method of keeping time.” Are there ANY circumstances that the employer can NOT ACCEPT what an employee says they worked and NOT PAY them for it? We don’t let employee’s “hang out” after work on site because they could later claim they performed work and would need to be compensated.”
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Under 29CFR 516.2(a)(7) Employers covered by FLSA must monitor of work of nonexempt employees and maintain records of total hours worked each day. Therefore, a telecommuniting (that is now what they have become) agreement should require the telecmmuter to report hours on a daily and weekly basis. Employees may keep time cards, but computer or telephone tracking systems that generate logs are more reliable. ( Gudance from the Business and Legal Review consultants.)

Mike
You state: “Depends on different factors.”
Are these the four factors listed in the DOL opinion letter above, or are there still even MORE factors?

You state: “If a cert or licensure was earned on the job as an ancillary part of the job then yes recerting could be compensable. On the other hand if having the certs or licensures were a pre-condition of employment then the answer would be no.” I am unaware of this distinction in the FLSA. Can you site where I can find this?”
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Mike it is not an FLSA distinction so much as it is related to job requirements. Any requirement that is ancillary and is a matter of direct training to succeed beyond a probationary period, so to speak, will become an FLSA pay issue if you require that person to maintain certs that you have trained him/her in to maintain that position. Certifications that are not a requirement for that position are of personal benefit to the employee but not necessarily compensable.

Secondly, if percertification is a requirement of the application process then you would not be paying the person for what they must have to even apply. Keeping the position would become a matter of keeping the certifications you came there with. That is an investment in your future but not necessarily compensable.

FLSA does not require each and every varying circumstance to be compensable. FLSA addresses very little about certifications just that any work that is mainly for the benefit of the employer is. That could include donning safety gear but not changing uniforms. It does not include casual voluntary wit time if a person just happens to show up eraly, but it does include work that continues beyond the work hours.

You state: “Depends on different factors.”
Are these the four factors listed in the DOL opinion letter above, or are there still even MORE factors?

You state: “If a cert or licensure was earned on the job as an ancillary part of the job then yes recerting could be compensable. On the other hand if having the certs or licensures were a pre-condition of employment then the answer would be no.”
I am unaware of this distinction in the FLSA. Can you site where I can find this?

You state: “Working at multiple agencys does not necessarily create a ‘divy up’ situation.”
So if an employee must have CPR certification for employment, and works for three employers who require it. All three employers would have to pay the employee work wages for the four hours to get the certification? This doesn’t even remotely sound right to me.

You state: “Independent contractors are under a different definition under FLSA. This would not be a problem or require compensation for recert.”
Having a certification/ licensure allows a person to work as an independent contractor. My concern was related to the above situation where the employee works for three employers on a seasonal/ part time/ on call basis that require certification/licensure (which you believe each employer would have to pay for the training hours) and the individual also working full time under contract with various entities (independent contractor) and having no responsibility for their own training. More than equity, this too seems so wrong.

You state: “Then time keeping will have to be done by the employee and accepted by the employer. It is the employer that has set this set of circumstances in motion knowing they do not have a ‘company’ method of keeping time.”
Are there ANY circumstances that the employer can NOT ACCEPT what an employee says they worked and NOT PAY them for it? We don’t let employee’s “hang out” after work on site because they could later claim they performed work and would need to be compensated. Now that the employee can sit at home and claim they attended an online course required for their certification/ licensure it seems that the flood gates for abuse have just been opened.

Depends on different factors. If a cert or licensure was earned on the job as an ancillary part of the job then yes recerting could be compensable. On the other hand if having the certs or licensures were a pre-condition of employment then the answer would be no.

Mike
If the person with licensure/ certification works at more than one establishment throughout the year (sometimes at the same time), how would these required training hours be recorded/charged to the various employers who require that licensure/ certification.
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Again that would depend on the requirement for haing the certifications. Working at multiple agencys does not necessarily create a ‘divy up’ situation. That would be the difference between equity (one for one) or fairness (not all is equal but things can be fair). Each job would have to be understood in its relevant requirement of certifications.

Mike
What if the person also uses their license/certification as an independent contractor?
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Independent contractors are under a different definition under FLSA. This would not be a problem or require compensation for recert.

Mike
Would these need to be considered for overtime considerations?
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Some would some would not.

Mike
If so, does the employer have any say as to WHEN the employee can take these courses?
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Yes the employer can set the time with in reason of when the courses will take place as long as the employee is not working off the clock.

Mike
For courses done at home and online, how does the employer track the hours worked when the employee may work on these courses at odd hours and there is no “log” provided of hours worked?
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Then time keeping will have to be done by the employee and accepted by the employer. It is the employer that has set this set of circumstances in motion knowing they do not have a ‘company’ method of keeping time.

Mike
Finally, just because someone is “logged” on, doesn’t mean they are working.
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True. That must be conveyed to the employee that is being compelled to work. Either way people cannot be allowed to ‘suffer to work’ off of the clock. Of course there is much more to this issue than can be explained on this thread, but this is the gist of it.

March 31st, 2009 at 1:45 pm
I am glad to see this being discussed. I work at a bank and several times a year we have manditory training after hours. We are told we will NOT BE PAID for our attendance. I have thought this was wrong, most of us are not salary. This causes a strain on some employees because we have to find additional childcare to attend w/o pay.
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Are you an exempt employee? If so then you actually are being paid. On the other hand not all salaried people are exempt. Exempt is not based on a job title it is based on the FLSA test that qualifies an exempt status. Non-exempt employees would be the easiest definition to understand for working off the clock. Finally training programs, lectures, and meetings that are a required function to attend are an FLSA required pay function.

You guys could sue and have compensation reviewed for up to the five previous years.

I know that many Chemical Dependency counselors and teachers in Ohio that would like this to be so. However, there is a catch, then. If the person with licensure/ certification works at more than one establishment throughout the year (sometimes at the same time), how would these required training hours be recorded/charged to the various employers who require that licensure/ certification. What if the person also uses their license/certification as an independent contractor? Would these need to be considered for overtime considerations? If so, does the employer have any say as to WHEN the employee can take these courses? For courses done at home and online, how does the employer track the hours worked when the employee may work on these courses at odd hours and there is no “log” provided of hours worked? Finally, just because someone is “logged” on, doesn’t mean they are working.

Inquiring minds would like to know.