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Pay wages for req'd training but not mileage New Jersey

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  • Pay wages for req'd training but not mileage New Jersey

    Need you guys to mediate a little debate we're having here.

    Employee (non-exempt) has some mandatory trainings that he must complete in order to keep his job. We offer this training in-house every month. He was told multiple times over a 4-month period to attend the in-house training (it's all all-day thing) and kept missing it, due to multiple excuses. He and all employees in his position are clearly told these trainings are mandated by the state, and we can't allow them to work if they let their certification expire.

    He finally missed the one offered last month, which was the last time we offered it before he expired. He was told to go get the training elsewhere by a certain date, or he must be terminated. On his own, he chose to attend a training about 50 miles away, with parking fees, and he paid a fee to attend the training itself. Like our internal training, this one he attended was an all-day event.

    He is now "demanding" to be paid for the day, for the training fee, and for parking and mileage to and from the training site.

    I say: Yes, it's a mandatory training, so he must be paid for the day. But he's not entitled to mileage or reimbursement of the fee he paid or the parking fee.

    Others say: Sure, it's mandatory training, be he was given multiple opportunities to get it done on paid time, and it was his own fault that he had to go to a training on his day off, so he isn't entitled to wages for that day. (I personally agree with the feeling behind this, but you all have taught me that he's supposed to be paid, much to my consternation). They also agree with me that he's not entitled to mileage or reimbursement of his fees.

    Another (lower-level) manager is saying to not only pay him wages for the day, but to also pay him mileage & parking, since traveling so far was a hardship, and we "required" him to do it. Same mgr is also saying we should reimburse him for the fee he paid. This mgr told him he'd be paid for all of this before checking with senior mgmt (I'm part of) on what our policy really is, and signed & submitted the form for him to get reimbursed for mileage and fees.

    Who's right?

    Oh forgot this: to top it all off, he's also asking to be paid for his time driving to and from the training site, adding about 3 hours to his time for that day.
    Last edited by TSCompliance; 09-24-2010, 12:38 PM.

  • #2
    Glad this is not my problem. I can help you with part of it. There are basically two types of labor law. Federal labor law (FLSA in this case) and state labor law. NJ is not my state, so I am going to punt on that. I can give you a federal answer only. Someone else needs to help you with NJ and then you need to try to piece both parts of the answer together.

    State mandate training is an exception to the "employer must pay the time" rule, at least as far as the feds are concerned. And there is no federal requirement (ever) that employers must reimburse any expenses, much less these. There are two states known for expense reimbursement rules, neither of which is NJ.

    Your BIG MOUTHED supervisor is a complication. If your employee wants to stir things up, they should file a small claims court action for pretty much everything saying that their supervisor told them to go and that their supervisor said that they should get paid. That will take it out of labor law and over in Wheel of Fortune time, where the judge gets to write their own rules in this matter. Not the question, but has the supervisor been disiplined? And if not, why not? Possible mixed messages here.

    The other complication is the employee choosing to miss training. If Bob reports to me, and I order Bob to do something, and Bob blows me off, I will make sure that the hammer falls on Bob. If I instead tell Bob to do something but fail to follow up, at some point, part of the problem is on me. I am unclear just why your employee felt that ignoring instructions was allowed and why there not consequences for failing to report to the training as ordered. Again, maybe more mixed messages here.

    I would have handled my end of the communications with the employee differently. I would not have said "get the training by x-date or get fired". I would have instead said "per state rules, you are suspended from working if you fail to get the state mandated certification update in a timely manner". Run the suspension a certain number of days, then terminate based on failing to resolve the suspension. I am not saying that my method is legally much different, but I would make it very clear to all employees that you do not work without a valid certificate (if required). All communications to the employees would stress that point. I would not waive the "termination" issue early in the process. I would not termination for letting the certification require, but would instead have an unpaid suspension waiting for the employee to resolve it (for a while anyhow) without mentioning the "t" word.

    I would want to be very clear on whether I was punishing the employee for disobeying instructions, or for failing to keep their certification current. Not quite the same thing. I have worked for companies where they wanted full and complete manuals of everything I did written (reasonable) but also wanted me to keep working 80-100 hours a week doing something else (not so reasonable). We sometimes have trade offs.

    If on the one hand your employee was being told to take the training classes, but on the other hand someone in your company was scheduling conflicting priorities on the same days, then we perhaps have another mixed message. BTDT.

    And does this employee have a supervisor? And where were they? I would have made sure that staffer showed up when required and that there were no scheduling conflicts. Maybe another mixed message.

    From the Payroll Source book:

    "Employees did not have to be paid for time spent in classroom training and testing to obtain licenses required by the state and to meeting continuing educational requirements. Even though the training was clearly related to the employee's job, the regulations allow such training to be uncompensated since it was provided by an independent institution ... The training was also voluntary because the state imposed the licensing requirement, not the employer. [Federal DOL opinion letter 9-15-97].
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      I agree that the supervisor is a problem, both for encouraging the employee in this inappropriate request and for not making sure the employee went to one of the 4 trainings offered in-house.

      His reasons for skipping the training sessions were NOT due to conflicting work priorities, but for conflicting personal priorities (call out sick twice, care broke down once, and some other vague reason about showing up at the wrong building, and then it was too late to go to the training, so he reported at his regular work site.)

      The communication that included "do this training or get fired" was not the primary message, but the final message after nearly 4 months of communication. All employees at the time of hire are informed in writing that the position requires certain training sesisons, and if any of these lapse, you are no longer able to work. Then 3-4 months before someone's certification expires, HR sends alerts to the employee and his/her supervisors. In the past, people lapsed when HR did not do reminders , or HR had incorrect dates in their system, so we did what you recommended: suspended the person until they did the training. But we now have a reliable system in place. But with this joker, I can't see giving him another chance.

      I agree about not wanting to motivate people with the "stick" of termination threats, but unfortunately, with a lot of the people we get, the T word has to be invoked or they won't do anything asked of them. It's really astonishing.

      And we're not talking a difficult time-consuming class or certification. This is CPR and First Aid.
      Last edited by TSCompliance; 09-27-2010, 10:08 AM. Reason: typo

      Comment


      • #4
        Oh, and thanks for the info on state-mandated training not having to be paid time. I hadn't heard of that.
        But I learned that my company has historically paid employees for their time in this training, and they plan to continue this. I agree it's a good practice, and fits in with our tendency to be generous to employees with PTO, benefits, etc, in making up for the fact that our non-profit salaries are comparatively low.
        Last edited by TSCompliance; 09-28-2010, 01:17 PM. Reason: yeek! typo!

        Comment


        • #5
          Originally posted by TSCompliance View Post
          And we're not talking a difficult time-consuming class or certification. This is CPR and First Aid.
          Your state mandates this? I am not saying you are wrong, but it has always been optional at places I work at. Maybe specific to the occupation.

          -------

          Past that, I personnally am fine with terminations for cause. My problem is when the employer or their supervisors seem to be equally at fault. If I am going to fire someone and maybe end up in court, I would rather that my explanation not sound like something out of a Three Stooges movies.

          Given your facts as stated, I would write up the employee, and step on the supervisor hard. I would consider the supervisor to be the larger of the two problems, based on what was said.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            Yes, if you are going to work with clients at any licensed mental health or developmental disabilities provider in NJ, you have to be CPR and first aid certified. It's in our state licensing regs. Plus, in Medicaid-billable programs, if staff are not certified, we can't bill. When we find someone lapsed on CPR/1st aid, and they worked alone with clients, we have to pay back Medicaid. So it's mandated by two separate sets of state regs: licensing and Medicaid regs.

            Comment


            • #7
              Originally posted by TSCompliance View Post
              Oh, and thanks for the info on state-mandated training not having to be paid time. I hadn't heard of that.
              Federal rule only. State law is whatever the state in question says it is.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                Originally posted by TSCompliance View Post
                Yes, if you are going to work with clients at any licensed mental health or developmental disabilities provider in NJ, you have to be CPR and first aid certified. It's in our state licensing regs. Plus, in Medicaid-billable programs, if staff are not certified, we can't bill. When we find someone lapsed on CPR/1st aid, and they worked alone with clients, we have to pay back Medicaid. So it's mandated by two separate sets of state regs: licensing and Medicaid regs.
                Fair enough. Federal rules are very clear on this. Someone else will have to address NJ rules.
                -----
                A good rule of thumb is that most/all labor law questions have both a federal answer and a state specific answer. Which ever of the two answers is most pro-employee is the last answer standing. However, lets say for the purposes of discusion that NJ is more pro-employee then the feds in this area. That is fine, but we functionally just removed federal DOL as a venue for resolution. The feds do not enforce state law (the opposite is sometimes true). Not all venues enforce all laws. This sometimes gives odd over all results.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

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