Hello Peter, whats happening? Ummm, I’m gonna need you to go ahead come in tomorrow. So if you could be here around 9 that would be great, mmmk... oh oh! and I almost forgot ahh, I’m also gonna need you to go ahead and come in on Sunday too, kay. We ahh lost some people this week and ah, we sorta need to play catch up.~ Bill Lumbergh, Office Space (1999)
Employment law is a contentious area of law to practice in. Employers and employees have interests that are not always compatible, especially when it comes to the employee “doing” something that feels like unpaid work. Whether that is a salaried employee coming in on a weekend to help the team catch up in a “right to work” state or an employee before forced to attend a 10 day training program unpaid in order to even begin work as is the case in the recent law suit against Hawaiian Airlines (The case is Kathryn Otico v. Hawaiian Airlines Inc., Case No. 16-cv-02557, in the US District Court for the Northern District of California). Employment Law 360, Clomedia, and the Ohio Employer’s Law Blog have all been reporting on this law suit filed against Hawaiian Airlines by Kathryn Otico in May. The suit alleges that Hawaiian Airline’s mandatory 10 day unpaid customer service training course is a direct violation of the Fair Labor Standards Act and that Otico should receive compensation. Hawaiian Airlines stated that Otico benefited from the training and that they lose money by supplying new employees with it among other arguments they presented to the courts.
What the judge will look at is the Fair Labor Standards Act which asks the following questions:
1. Is attendance outside of the employee’s regular working hours?
2. Is attendance truly voluntary?
3. Is the course, lecture, or meeting indirectly related or unrelated to the employee’s job?
4. Does the employee not perform any productive work during such attendance?
Unless the answer to all four questions is YES then it will be considered time that should be paid by the employer. For an employer to not have to pay for training that training cannot be work related or mandatory, and that makes sense. Ten days of learning about your job during work hours certainly feels like work to most people, and according to information contained in the court papers the Otico had to learn job-related things like the federal regulatory requirements related to her job and how to use the airline software system. Her legal team claims that she is due at the very least minimum wage for that period since attendance was mandatory, the training was directly related to her job, and that the sessions were presented during working hours.
Hawaiian Airlines countered that the defendant received more than minimum wage through the benefit of receiving a class that was worth $7,000 had it been taken at a vocational school, and that Otico cannot prove that she was engaged in actual work during the course. They also stated that they also lost money by taking the instructor away from work to teach the course and paying someone to fill in at the instructor’s position. Lastly, they argued that she was away that it was unpaid before she set food in the class. Considering that it is illegal to ask employees to volunteer time anyway that argument from Hawaiian Airlines will not fly (pun intended).
Beyond the legal arguments this is the type of case where employees and employers have a hard time seeing the other’s side. To the employee who would rather see their free time go to something fun, 10 days of training for work doesn’t feel like a benefit. It’s that old adage of “if you enjoy it, it’s not work”. Work isn’t fun for more people. Unless you’re a rock star or astronaut most of us would rather be golfing or reading in front of a warm fireplace. We work for pay, and when you’re not paid, you’re going to be cranky. For the employer, however, they lose money training people. They pay for the training, and there are a lot of training options out there, so they see its inherent value. To employees thousands of dollars in training is something people should be grateful to receive.
Because certain issues are emotional and perspective-driven we have civil law. There needs to be clear cut rules to adjudicate from. The Fair Labor Standards Act is that guideline. It is how the judge will decide the case and in spite of what benefit Hawaiian Airlines feels they bestowed on Ms. Otico, the fact remains the law is pretty clear on what you can require as an employer of your employee and what you cannot. At this point unless Hawaiian Airlines is able to pull a rabbit out of a hat at the last minute it’s a pretty good chance that the judge will not side in their favor.
It’s a very interesting case and will no doubt open floodgates if the court rules in favor of the plaintiff, since this does not appear to be an isolated event. Non-exempt employees who have been put in this position would not only receive pay for that time, if the case concludes in Otico’s favor, but also overtime. On October 6th, Hawaiian Airlines moved for summary judgment. No ruling on the motion has been made yet, but unless the aforementioned rabbit shows up it doesn’t look good for the company.