Reader Questions: Salary, Non-Exempt and Paying for Training

I had a couple of questions from readers on my post about exempt vs. non-exempt workers:

Anthony asked:

In this post, I’ll try to answer these questions.

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Caveat: I am not a lawyer

I am not a lawyer, so I cannot give a definitive answer to these questions. However, I can give a lay opinion. 😉

Can an employer not pay during training?

The best discussion of federal law on training I found was in the context of internships. As Kathleen Kirby explained to radio and television employers, the Department of Labor (DOL) has six tests a job must pass before it can be paid below minimum wage:

1. the training is similar to that which would be given in a vocational school;
2. the training is for the benefit of the trainees or students;
3. the trainees or students do not displace regular employees, but work under their close observation;
4. the employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion his operations may actually be impeded
5. the trainees or students are not necessarily entitled to a job at the conclusion of the training period;
6. the employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

Even though Kathleen’s post is from 1999, it appears this is still the DOL’s position. Things do not change rapidly in the Federal Government…

I mentioned test #2 (must be for the benefit of the trainee) in my post on Summer Internships. Tests #5 (no certain job at end) and #6 (both employer and employee agree wages are not entitled) seem to apply here.

A regular employee, who receives on the job training, would fail test #5; the expectation is that s/he will continue being employed. A regular employee will likely also object to not being paid for on the job training. Hence time spent in on the job training must be paid.

What is “salary, non-exempt”?

The best discussion I have found for the “salary, non-exempt” employment status was on workforce.com.

There appears to be no legal difference between salary, non-exempt and hourly, non-exempt, at least as far as federal law goes.

The difference is in the expectations of the employer and employee: for salary, non-exempt, the expectation is that the employee will work fulltime, and generally will not work overtime.

What jobs makes sense as salary, non-exempt? A receptionist who is expected to be present from 9 am to 5 pm each day makes sense as a salaried, but non-exempt, employee.

This does not mean s/he can be required to work more than 40 hours without over-time. It is just that 40 hours a week, no more and no less, is the expectation. If the receptionist is asked to stay past 5 pm to work on an additional project, and exceeds 40 hours for the week, s/he would earn overtime.

These are my best understanding of the federal legal requirements. There are also state laws that may apply.

Just because something is not legally required, does not mean an employer would not do it. Employers can add additional benefits for any job, based on policy, union contracts, etc. For example, an employer may decide that salary, non-exempt employees are paid for company holidays, while hourly, non-exempt are not. In that case, company policy has made a distinction that is not present in the federal laws.

I hope these answers are useful.

Cheers,

Al Lee

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