We are a Merit Shop electrical contractor and require our employees to
go to safety class on a yearly basis in order to fulfll our
contractual comminents to our customers. In the past we have been
paying our employees who go to these classes on their days off at
minimum wage times overtime. In other words minimum wages times 1-1/2
for reimbursment.

We are told this is illegal in California in that we have to pay them
some kind of wage based on an actual formulated hourly rate.

I am looking for what this rate would be and/or how we would be able
to calculate it. Every contractor in this local has paid as we have.
Evidently we have all misunderstood the correct law.

I need this ASAP as I am going to an aribtrator in two day and need to
understand our potential liability.

Hello -

Thank you for your question.  If you require any additional
clarification, please feel free to ask.

In order to comply with the law as set forth in the Division of Labor
Standards Enforcement "Enforcement Policies and Interpretations
Manual," you would indeed have to change your existing pay rate for
training.

Because this is considered "hours worked," any work over a 40 hour
work week should be at the employee's normal hourly rate x 1.5 ("time
and a half").  Any training occurring under 40 hours should be at the
employee's normal hourly rate.

I've included the relevant specific excerpts from the manual below. 
You will see that sections 46.6.5 and 46.6.6 delineate voluntary or
intern-based training.  Everything else is considered involuntary
"hours worked" per section 46.6.7.


46.6.5 Training Programs, Lectures, Meetings. 
????????????????????????????????????????????????????????????????????????????
The Division utilizes the standards announced by the U.S. Department
of Labor contained at 29 CFR §§ 785.27 through 785.31 in regard to
lectures, meetings and training programs:

  Time spent by employees attending training programs, lectures and meetings are 
  not counted as hours worked if the attendance is voluntary on the part of the 
  employee and all the following criteria are met:

  1. Attendance is outside regular working hours;
  2. Attendance is voluntary: attendance is not voluntary if the employee is led 
     to believe that present working conditions or the continuation of 
     employment would be adversely affected by nonattendance;
  3. The course, lecture, or meeting is not directly related to the employee?s 
     job: training is directly related to an employee?s job if it is designed to 
     make the employee handle his job more effectively as distinguished from 
     training him for another job or to a new or additional skill; and
  4. The employee does not perform any productive work during such attendance.
    
     
46.6.6 Intern Programs.
????????????????????????????????????????????????????????????????????????????
Historically, DLSE has required that in order to be exempt from the
wage and hour requirements of the IWC Orders, the intern?s training
must be an essential part of an established course of an accredited
school or of an institution
approved by a public agency to provide training for licensure or to
qualify for a skilled vocation or profession. The program may not be
for the benefit of any one employer, a regular employee may not be
displaced by the trainee, and the training must be supervised by the
school or a disinterested agency. (O.L. 1996.12.30)


46.6.7 All Training Programs, Lectures, Meetings, Etcetera Which Do Not Meet The
       Above Criteria Are Hours Worked. 
????????????????????????????????????????????????????????????????????????????
If any one of the above listed criterion is not met, the time is to be
considered ?hours worked?.


The full manual can be seen at:
http://www.dir.ca.gov/dlse/DLSEManual/dlse_enfcmanual.pdf


Search strategy:
  Division of Labor Standards Enforcement
  100 Paseo de San Antonio, Room 120
  San Jose, CA 95113
  (408) 277-1266 Jean Murphy

---

Request for Answer Clarification by rcer-ga on 05 Nov 2004 10:14 PST

This is not totally correct. In the California Division of Labor
Standards Enforcement Policies and Interpretations Manual 49.2.5 it
talks about "Weighted Average Method" and states the following "Where
two rates of pay are paid during a workweek, the California method for
determining the regular rate of pay for calculating overtime in that
workweek mirrors the federal method, based upon the weighted average
of all horly rates paid. (Se 29 CFR sec.778.115)".

What I am acutally looking for is the correct formulation used to
calculate this weighted average. We have currently been paying our
employees at the minimum wage rate times overtime for this safety
training and I am now being told that this is incorrect.

For the past fifteen years I have called our local office of Division
of Labor about how I should pay our employees for this training, and
every year they have given us the same answer that we only had to pay
at minimum wage times overtime. We now know this is incorrect. The sad
part of this is that I called yesterday and was given the same
incorrect answer. I then asked for the local manager to get the proper
instructions and he verified that we have to use the weighted average.

Thanks,
John

---

Clarification of Answer by jbf777-ga on 05 Nov 2004 11:19 PST

John -

Yes, I have encountered similar issues when calling these offices.

On a federal level, all hours worked/trained over 40 hours must be
paid at time and half.  It wasn't clear to me from your question
whether this training time was "over 40 hours" (overtime) or not
(since it was their "day off," I assumed so).

Now, if you pay your employees two different wages DURING their 40
hour work week, then all work or training OVER the 40 hours uses the
"weighted average" method.  This is calculated by taking the total
earnings for the pay week and dividing by the actual number of hours
worked and trained.  You then take "time and a half" of this figure
(multiply by 1.5), and this is the hourly rate of training/work over
40 hours.

See this document at the Department of Labor Website for information on this topic:

http://www.dol.gov/esa/regs/compliance/whd/whdfs23.htm


Please let me know if you have any additional questions.

jbf777

Great work, thanks!

Thank you for the rating.  Please stop by again!

jbf777