Ohio Employer Law Blog | Daily Updates | 01CTraining isn't homework. If you require it, it's work.>01D plus more

Training isn't homework. If you require it, it's work.

Imagine requiring employees to complete two hours of online training every week, giving them no time to do it during their shifts, and then refusing to pay them when they finish it at home.

That's essentially what a former Rivian service technician alleges in a proposed class action in Washington state court. He claims non-exempt employees had to complete mandatory training modules off the clock, sometimes pushing their workweeks past 40 hours without overtime pay.

Those are allegations, not proven facts. But the wage-and-hour lesson is one every employer with an online training platform needs to understand.

Under the DOL's regulations, training generally is unpaid only when all four of these conditions are met:

1. It happens outside regular working hours. Requiring employees to finish training by Friday doesn't magically make it unpaid just because they do it Thursday night on their couch.

2. It's genuinely voluntary. Required isn't voluntary. Neither is "optional" training when employees reasonably believe skipping it could cost them a raise, promotion, or even their job.

3. It isn't directly related to their current job. Teaching employees to do their existing jobs better? That's job-related. Teaching them skills for an entirely different position may be another story.

4. No productive work happens during the training. If employees are performing actual job duties, you can't disguise that work as unpaid training.

Miss even one, the exception doesn't apply, and the time must be paid.

Further, don't assume that because non-exempt employees are completing training at home, you can ignore the time. Under the FLSA's "suffer or permit" standard, employers generally must pay non-exempt employees for work they know or have reason to know is happening. If your training platform shows non-exempt employees completing mandatory modules off-the-clock, and you've given them no time to finish during their shifts, those records will come back to haunt you.

Then there's the overtime math. If an employee works 40 hours and completes two additional hours of mandatory training at home, that's potentially two hours of unpaid overtime, and not just two hours of missed wages.

You can fix this problem simply by providing non-exempt employees paid time to complete required training. If they must finish it outside their scheduled shifts, make sure they record that time and get paid for it. Finally, make sure supervisors aren't sending mixed messages about reporting those hours.

You can't require the training, refuse to make time for it, and then pretend it didn't happen because it was completed at home. Homework is for school. At work, it's just called work.

If you make employees show up early, you might have to pay them to wait

Your plant's first shift starts at 6:00 a.m. But you tell everyone to be at the door by 5:45, ready to work.

Most mornings, the supervisor unlocks the building on time. About once a week, he doesn't. The time clock is inside. So employees stand in the parking lot for fifteen minutes, unpaid.

Do you owe them for that time?

According to the 2nd Circuit, quite possibly.

In Santos v. Lidl US, a grocery clerk alleged that Lidl required her to report fifteen minutes before her 5:00 a.m. shift. But managers weren't always there to unlock the store. She couldn't clock in until someone let her in. About once a week, she lost fifteen minutes of pay, sometimes at overtime rates.

The district court dismissed her claim under the Portal-to-Portal Act, which generally excludes preliminary activities from compensable working time.

The 2nd Circuit reversed because there's a difference between "waiting to be engaged" and being "engaged to wait."

If an employee voluntarily shows up early, that waiting generally isn't compensable. But if you require an employee to report ready to work, and something beyond their control prevents work from starting, that waiting time is compensable.

Lidl argued that Supreme Court precedent foreclosed that conclusion and that the rule applied only to on-call workers, like firefighters. The court rejected both arguments.

It also refused to dismiss fifteen minutes a week as de minimis. Small doesn't automatically mean insignificant, particularly when the time is recurring and trackable.

Judge Sullivan dissented, reasoning that the waiting wasn't integral to Santos's job and that she could have arrived at her scheduled start time.

This wasn't a final judgment. Santos still must prove her allegations. But her FLSA collective action and New York wage claims are back in play.

So what should employers do?

1. Look at what you require. "Be here fifteen minutes early" isn't a suggestion. If employees must report ready to work but can't start because of something you control, that waiting time may be compensable.

2. Fix the access problem. Install an outside time clock, enable mobile clocking, or ensure someone with a key arrives on time. And pay employees for compensable time even if they can't clock in.

3. Don't dismiss small amounts of time. Fifteen minutes a week sounds trivial. Multiply it across employees, weeks, and overtime rates, and it adds up.

If you don't need employees there fifteen minutes early, don't require it.

You don't get to control when employees show up, keep them waiting, and then pretend their time doesn't count just because the door is locked.

Shane Gillis's SNL joke is a hostile work environment lesson

"I didn't know women just dress like whores now?"

That was one of the punchlines from Shane Gillis's Saturday Night Live monologue this past weekend. The studio audience groaned. Gillis just kept on going.

Now imagine your regional sales manager saying it in Monday's staff meeting. Same words. Same smirk. Very different exposure.

Gillis isn't your employee, and nobody's filing a lawsuit over a monologue. But it's the premise that's the problem. A woman's clothes are never an invitation for men to judge her body. The men doing the judging are the ones in the wrong.

That attitude doesn't stay on a stage. And a stage that big gives it license to walk into your workplace and sit down in the break room.

Defenders will say it's just a joke. That's how this stuff survives. A joke sets the rules of the room faster than any handbook. Everyone hears what's acceptable, and then tests whether anyone will push back.

The woman who hears it learns two things in about four seconds. What he thinks of her. And that nobody is going to say anything.

One joke usually isn't actionable harassment. Title VII and state law require conduct that's severe or pervasive. But it's never really one joke. It's the first one.

And when the claim finally lands on your desk, the question won't be who told the joke. It will be what you did when you found out.

That's where employer liability lives. Not in the punchline. In the silence after it.

Dan Levy called the joke out on Instagram and argued that men, in particular, need to speak up and speak out against misogyny. That goes double at work.

Supervisors don't get to laugh along, and they don't get to stay quiet. Say something in the moment. Report it afterward. And make sure your training says out loud that "it was just a joke" isn't a defense. It's an admission that someone said it.

The SNL studio audience groaned. In your workplace, someone needs to do way more than that.

"So sensitive" is not a harassment defense

"So sensitive."

That was a television network owner's reply after a pastor told him, in writing, to stop sending a meme the pastor called racist. It's also a terrible defense to a harassment claim.

Bishop George Bloomer (Black) hosted a show on the Word Network, owned by Kevin Adell (White). Adell showed Bloomer a meme of the network's preachers, drawn as tiny figures, surrounding Adell dressed as a pimp. Bloomer texted back that it was "not funny" and compared it to putting a black face on a white man.

Adell kept going. He sent Bloomer's face from the meme and called him "Tattoo." He sent a photo of himself with a white man whose face was scribbled over in black marker.

Bloomer finally wrote that he was asking "for the last time." Adell answered: "OK!!!!" "Got it." "So sensitive." "WTF."

Bloomer later quit and sued for race discrimination and harassment. The court has already held that Adell's taunting after Bloomer objection is direct evidence of racial animus. A federal court jury is currently hearing the evidence, and it will have the final say as to whether that direct evidence supports a verdict in Bloomer's favor.

Adell's defense at trial is essentially friendship. His lawyer says the two men teased each other for years. Adell testified that Bloomer ribbed him about his clothes and his Jewish heritage, and "I didn't take offense to it." His lawyer's summary: "They both crossed the line."

Notice that framing, and what it asks the jury to ignore.

Harassment has to be unwelcome, and the test is what the plaintiff found unwelcome, not what the defendant can tolerate. Adell's thick skin doesn't set Bloomer's limit. And Bloomer told him where it was, in writing.

Banter may explain showing him the meme. It doesn't explain the texts after he was asked to 'stop.'

Every workplace has a version of this. "That's just how we joke around here." Maybe. But a history of joking doesn't turn an objection into a punchline.

Jokes are "just jokes" until they aren't. Before someone objects, a bad joke is a bad joke. After, it's evidence of intent.

If someone tells you to stop, stop. Especially if you own the place. Adell told Bloomer he "got it." He didn't. And now a jury will decide whether he pays, and how much.

WIRTW #813 (the 'isn't it ironic' edition)

Somewhere, George Orwell is shaking his head.

This week, a Florida school board voted to remove a graphic-novel adaptation of 1984 from a school library.

Yes, 1984. The dystopian novel about censorship, government control, and the manipulation of information.

And yes, during Banned Books Week.

You can't make this stuff up.

To be fair, the Duval County School Board didn't ban Orwell's original novel. The district's roughly 200 copies remain available. The board removed its sole copy of Fido Nesti's illustrated adaptation because of concerns about its sexual imagery.

That distinction matters. But so does the irony.

Orwell gave us "Big Brother," "thoughtcrime," and "doublethink" to describe a world in which authorities control information and decide which ideas people are permitted to encounter.

Eighty-seven years after the fictional events of 1984, a Florida school board is debating which version of 1984 its students should be permitted to read.

I understand that schools have a responsibility to consider age-appropriate materials. Parents should have a voice in their children's education. And reasonable people can disagree about where to draw those lines.

But there's also a difference between protecting children from inappropriate content and deciding that the best response to uncomfortable ideas or images is to make them disappear.

Orwell understood that distinction. That's part of what makes this story so remarkable.

Perhaps the most important lesson of 1984 isn't what happens when a government controls what people can read.