Compliance with employment laws and regulations often impacts training in a variety of important ways. Here are three specific issues.
Q. Is it permissible to exclude employees from training if they are expected to retire soon?
A. Especially in light of the economy, it is understandable that an employer would want to invest its training dollars wisely and avoid situations in which an employee retires shortly after training has been completed. However, employers that exclude employees from training on the basis of age (or other protected work status) likely will be swimming in murky, and perhaps, shark-infested, waters.
Susan Prince, J.D., legal editor at BLR, cautions against asking older workers whether they plan to retire and advises employers not to base training decisions on an employee’s age.
Offering an early retirement package is one thing, but refusing to train older workers is an entirely different thing—even if the company is concerned about them leaving before it sees a return on its training investment.
Refusing to provide training to a retirement-age employee due to the suspicion that the employee will not remain with the company could easily encourage the employee to consult a lawyer, possibly resulting in an age discrimination lawsuit. Once in court, the judge interpreting the federal Age Discrimination in Employment Act or a state fair employment law would likely frown upon such an action.
Besides, Prince points out, there is no guarantee that younger workers who receive training will stay longer than their older counterparts.
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Q. May an employee on FMLA leave attend a worksite training seminar?
A. An employee who is taking leave under the Family and Medical Leave Act (FMLA) may attend a worksite training seminar, but you need to keep a few things in mind to stay compliant with applicable laws, says Susan Prince.
“The employee would have to be paid for the time, and training time cannot count against his or her FMLA time. If the employee is exempt [under FLSA], there is the safe harbor exception for docking/paying in increments when FMLA leave is taken,” says Prince.
Employers should keep in mind that intermittent leave regulations are complicated and vary for exempt and nonexempt employees.
Nonexempt employees may be docked for any time not worked during a workday because of reduced-schedule leave, in accordance with normal practice under FLSA.
For exempt employees, FMLA mandates a variation from normal FLSA practice. The U.S. Department of Labor has made it clear that the employers may make deductions from the employee’s salary for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the employees exempt status.
While employees should not be forced to attend training while on FMLA leave, there are several advantages to allowing employees to attend if they are willing and able to do so.
- The employee would be able to learn the training material at the same time as everyone else.
- The employee could participate in any interactive exercises and dialogue with coparticipants.
- There would be no need to have a special make-up session for this employee alone on the employee’s return to work—and to incur the additional expense of training one employee separately from others.
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Q. Can employees be asked to pay for required training?
A. “It is highly inadvisable to request that employees personally pay for required training,” says Susan Schoenfeld, J.D., senior editor at BLR. “If the employer is requiring training as mandatory for the job, it should be the employer’s responsibility to pay any training fees.
“Sometimes employers have contracts in which the employee agrees to reimburse tuition or training fees if the course work/training is not completed within a certain time, or if the employee leaves employment within a certain amount of time (generally, 1 year or less),” Schoenfeld adds. “In the absence of such a contract, however, it is inadvisable to require employees to pay for training mandated by an employer.”
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