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I work in NJ for a construction company and we must take a 10 hour OSHA safety course they are making everyone take it.
so they have canceled work for one day during the week but noone is getting paid.... IS this legal?
"Employee" includes any individual employed by an employer, except:
For trainees who are involved in a program in which:
i. The training is for the primary benefit of the trainee;
ii. The employment for which the trainee is training requires some cognizable trainable skill;
iii. The training is not specific to the employer, that is, is not exclusive to its needs, but may be applicable elsewhere for another employer or in another field of endeavor;
iv. The training, even though it includes actual operation of the facilities of the employer, is similar to that which may be given in a vocational school;
v. The trainee does not displace a regular employee on a regular job or supplement a regular job, but trains under close tutorial observation;
vi. The employer derives no immediate benefit from the efforts of the trainee and, indeed, on occasion may find his or her regular operation impeded by the trainee;
vii. The trainee is not necessarily entitled to a job at the completion of training;
viii. The training program is sponsored by the employer, is outside regular work hours, the employee does no productive work while attending and the program is not directly related to the employee's present job (as distinguished from learning another job or additional skill); and
ix. The employer and the trainee share a basic understanding that regular employment wages are not due for the time spent in training, provided that the trainee does not perform any productive work.
If a trainee does not meet all of the above-listed criteria, the trainee shall be considered to be an employee.
Under this section, you would be considered an employee for the training period and be required to pay wages as required by Section 34:11-56a1. I think they could, however, only pay you minimum wage for those hours. And all of this would be void if you are classified as an independent contractor.
I work in NJ for a construction company and we must take a 10 hour OSHA safety course they are making everyone take it.
so they have canceled work for one day during the week but noone is getting paid.... IS this legal?
Sadly, if you are not a member of a union, and you are an "at will" employee, they can make you do anything they want. Now, you don't have to do it, but I am sure the consequences are termination, as this is probably considered a requirement of the job. I put up with this crap all the time and when I called the dept of labor and industry, this is what I was told. I am forced to "give" an hour of travel time morning and evening, although using the companies vehicle. Travel to and from school/training etc and this time is unpaid too, along with anything else they decide. They even started making us listen to their BS during our lunch. Sucks.
It's true. Yes, it sucks, and that is one advantage of a labor union. From the government's perspective, OSHA is a federal requirement, you have to do it if you want to work there, too bad so sad if your employer doesn't want to pay wages for it. That's government "logic"!
I think it would fit in section ii in the post of the law.
I think it would fit in section ii in the post of the law.
As I highlighted, the training must meet all of the requirements in that section, not merely one of them, to be exempt from paying wages for training.
Also, OSHA doesn't actually mandate training, they merely advise it. You can read all the details of that here. They have guidelines, but not mandatory training. They certainly don't mandate that training must be unpaid, they don't have jurisdiction over wages.
You don't need a union to protect you... the law already does that. Remind your boss that what he's doing is against the law if you want, be nice. I doubt that they'll mind paying you for the work you're doing.
If the training is required by your employer, they have to pay you for it.
From the US Dept. of Labor Wage & Hour Division:
"Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed."
PDF here. (http://www.dol.gov/whd/regs/compliance/whdfs22.pdf - broken link)
In your case, the training will be during normal working hours, it is not voluntary, and it is job related. So, I'm fairly certain they have to pay you for it.
Ask youself if it is worth the fight. Is there anything that would prevent your employer from just letting you go if you push this?
Are you saying you would want to work for an employer who takes advantage of their staff like this? My advice to odaveo1: talk with your state's department of labor.
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