Can a Job Make You Work a Trial Shift for Free? — In Plain Words

This page is general information only. It is not legal advice.

An honest note about the words

The federal regulation on this page does not use the phrase “trial shift.”

That phrase is not named in the regulation.

What the regulation gives is a set of tests for what counts as hours worked.

A trial shift is measured against those tests.

This page prints those tests in plain words, exactly as the regulation states them.

Work that is suffered or permitted counts as work time

Section 785.11 states the general rule this way: work not requested but suffered or permitted is work time.

For example, an employee may voluntarily continue to work at the end of the shift.

The employee may be a pieceworker, may desire to finish an assigned task, or may wish to correct errors, paste work tickets, prepare time reports, or prepare other records.

The reason is immaterial.

The employer knows or has reason to believe that the employee is continuing to work, and the time is working time.

Section 785.12 states that the rule is also applicable to work performed away from the premises or the job site, or even at home.

If the employer knows or has reason to believe that the work is being performed, the employer must count the time as hours worked.

Section 785.13 states the duty of management.

In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed.

Management cannot sit back and accept the benefits without compensating for them.

The mere promulgation of a rule against such work is not enough.

Management has the power to enforce the rule and must make every effort to do so.

Training time: the four-part test

Section 785.27 is about attendance at lectures, meetings, training programs, and similar activities.

It states that attendance need not be counted as working time if the following four criteria are met:

1. (a) Attendance is outside of the employee's regular working hours;
2. (b) Attendance is in fact voluntary;
3. (c) The course, lecture, or meeting is not directly related to the employee's job; and
4. (d) The employee does not perform any productive work during such attendance.

All four criteria must be met.

If one criterion is not met, the test in section 785.27 does not take the time out of working time.

When attendance is not voluntary

Section 785.28 states that attendance is not voluntary, of course, if it is required by the employer.

It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.

Training directly related to the job

Section 785.29 states that training is directly related to the employee's job if it is designed to make the employee handle his job more effectively, as distinguished from training him for another job, or to a new or additional skill.

For example, a stenographer who is given a course in stenography is engaged in an activity to make her a better stenographer.

Time spent in such a course given by the employer or under his auspices is hours worked.

However, if the stenographer takes a course in bookkeeping, it may not be directly related to her job.

Thus, the time she spends voluntarily in taking such a bookkeeping course, outside of regular working hours, need not be counted as working time.

Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee's job even though the course incidentally improves his skill in doing his regular work.

Independent training

Section 785.30 states that if an employee on his own initiative attends an independent school, college, or independent trade school after hours, the time is not hours worked for his employer even if the courses are related to his job.

Special situations

Section 785.31 states that there are some special situations where the time spent in attending lectures, training sessions, and courses of instruction is not regarded as hours worked.

For example, an employer may establish for the benefit of his employees a program of instruction which corresponds to courses offered by independent bona fide institutions of learning.

Voluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his job, or paid for by the employer.

Apprenticeship training

Section 785.32 states an enforcement policy: time spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met:

1. (a) The apprentice is employed under a written apprenticeship agreement or program which substantially meets the fundamental standards of the Bureau of Apprenticeship and Training of the U.S. Department of Labor; and
2. (b) Such time does not involve productive work or performance of the apprentice's regular duties.

If the above criteria are met, the time spent in such related supplemental training shall not be counted as hours worked unless the written agreement specifically provides that it is hours worked.

The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked.

How the regulation's own tests line up with a trial shift

Under the regulation's own tests, a working trial in which the person performs productive work for the business, doing the job itself, fails the section 785.27 test on its face.

It fails for two reasons stated in that test:

• Productive work is performed during the attendance, so criterion (d) is not met; and
• The activity is directly related to the employee's job, so criterion (c) is not met.

Under sections 785.11 to 785.13, work that an employer suffers or permits is work time, and it is management's duty to exercise control and see that work it does not want performed is not performed.

Only the employer, the Department of Labor, or a court can decide a real case.

This page does not decide whether any one person's trial shift counted as hours worked.

This page is general information only. It is not legal advice.