Overtime, straight time and other compensation for entering a trainee programs is often an area of litigation. Training is often an area of litigation where overtime claims are filed to demand not only payment for overtime, but for straight time when wages are not paid, because the rules are often misinterpreted.



Overtime lawsuits arise when individuals feel their overtime rights have been violated, and sometimes they arise when trainees are unhappy because of training hours in excess of 8 hours per day. In many instances payment of wages is not required when the prospective employee is undergoing training. It depends on the specific circumstances of each individual case, but it is usually a matter of determining if the training is for the benefit of the employer or the trainee. One particular area where training is required under California Law is in the private security guard industry.

In a recent opinion letter the California Division of Labor Standards Enforcement determined that no wages were due when training security officers for private security companies under new laws that purport to regulate the industry. The opinion was cautious and tends to suggest that even though it can be used as guidance it should not mean to be interpreted as applying to all situations.

The opinion of the labor commissioner is that the time in the pre-employment training program does not require wage compensation under the facts presented in your letter. The letter focused on the required security officer training in order to be a registered security officer and not the licensing of a private operator. In rendering it is opinion the Division of Labor Standards Enforcement relied on a test it regularly uses to evaluate training programs and determine whether individuals are exempt from minimum wage requirements as trainees.

In this specific case the training was provided at no cost, but it did promise or guarantee employment, but it was required before any employment would be offered. The prospective employee had to also comply with other company hiring requirements.

The Divison of Labor Standards Enforcement also noted that no work was required as part of the training. No work was performed directly or indirectly in the participation for the private security operators. The participant's training is for their own advantage and at not cost, which happens to be a requirement under federal and state laws that pertain to hiring interns without pay. The fact that an offer of employment could follow upon completion of the training program was determined to be insufficient to establish and employer employee relationship.

The Divison of Labor Standards Enforcement was satisfied that there was no employment relationship and therefore the trainee would not be entitled to overtime pay, straight pay, or any benefits. The DLSE also emphasized that a different result could ensue if there are assignments to work for, or individuals are allowed to work on behalf of, the training private security operator, because the trainee would be engaged, suffered, or permitted to work by the operator.

The focus is therefore on whether or not the employee is engaged in activities that could be construed as work done on behalf of the operator providing the training or if the training is for the benefit of the operator and not the trainee.