To follow up on Dennis’ posting, I wanted to mention another aspect of this “trainee” concept. It is critically important to remember that the nature of the U.S. Department of Labor’s (“DOL”) view on this subject often derives from the view that the employer providing the training is doing a general service to the community, for example, by increasing the size of the qualified pool of potential new hires for businesses that require such skills. In following that theme, an employer must be alert to portions of a training program that include instruction or education on that particular employer’s policies, procedures and/or practices. Such information, in the DOL’s view, runs afoul of factor 2 and/or 4 of the Walling test.
For instance, a few years ago, a transportation company that I worked with began providing a training program to assist potential driver applicants to learn to drive the relevant vehicles, which ultimately required the applicant to acquire a commercial driver’s license (“CDL”). Not only did the company provide classroom training but it provided road testing to assist the enrollee in obtaining a CDL, and even allowed an enrollee who completed the program to borrow a vehicle for taking the state’s CDL driving test. For the DOL, even though the overwhelming majority of the training focused on driving skills and related safety procedures (which were fungible and usable by enrollees within the transportation industry), the problem existed in certain small portions of the nearly 35 hours of training that the company provided. Specifically, the DOL objected to the company’s review during the training of its own defensive driving, accident reporting and drug testing policies as well as a review of the company’s employee handbook materials. In the end, we were able to work with the DOL to eliminate certain portions of the training so that it was comfortable with the company’s continued provision of the program without FLSA implications—but the DOL did require minimal back pay payments to be made to numerous of the recent enrollees who successfully completed the course.
So, as Dennis said, “proceed with caution”—pay close attention to all aspects of your training or unpaid intern program before you implement it.–By Jason E. Reisman