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20 JULY/AUGUST 2015 | Med Esthetics LEGAL ISSUES Unless you're sending your team on a whitewater rafting getaway, where the only education is how to pitch a tent or start a camp fi re, federal law mandates that you compensate your employee(s) for training time. An easy way to think of it is the "Butt in the Chair" rule. Your employees must be compensated for any hours spent sitting (or even standing) in any meeting, CE or class that you required or instigated. For hourly employees, this does not include time spent eating, relaxing, talking, shopping or sleeping. But it does mean all time spent in training. For employees who are exempt salaried, you cannot deduct time for any days spent in training or traveling to and from the event, with one exception: continuing education to maintain licensure. If your employee attends a continuing medical education training event to maintain state licensure, without which they would not be able to continue working, then you do not have to pay for that time. But be careful—if you require that the employee attend a specifi c CE event at a specifi c time (e.g., Friday at 3 p.m., rather than Monday, to better fi t your patient schedule), then the hours spent in training are compensable. What About Travel Time? As we discussed above, employees must be compensated for time spent in a training program or session. But what about time spent traveling to and from the event? First, there is the car vs. plane rule. Travel time incurred when an employee drives him or herself to an event is always com- pensable, even if the drive time occurs outside of normal working hours. You may deduct their normal commute time from home to the offi ce off each leg of the trip. For planes, trains, buses or other mass-transit travel, the rules depend once again on an employee's normal work hours. If travel to or from a training event cuts across normal work hours, and the employee is a passenger, then those hours are compensable. This includes time spent riding as a passenger in a car driven by another employee. Consider this example: Your medical assistant Jay normally works from 8 a.m. to 5 p.m., and today you're sending him to an out-of-town event. His plane leaves at 3 p.m. and arrives at 6 p.m. Since this cuts across his normal schedule for two hours, he is entitled to two hours of travel pay. (We will address travel pay vs. work pay below.) This is true even if Jay is traveling on a Saturday or Sunday, days when your clinic is closed. Conversely, if his fl ight is from 6 p.m. to 9 p.m., you are not required to compensate him for that time, unless he is actively working. If you have an employee who actually performs work while traveling (answering emails or fi guring out next month's schedule, for instance), then that time is compen- sable as time worked. This is true whether or not the work is performed during normal work hours or days. When traveling between time zones, the time from the point of departure (each way) is used. Differential Rates of Pay While training and travel time must be compensated in ac- cordance with the criteria above, you do have the option of setting a different, lower rate of pay for that time, so long as it is at least the minimum wage required in your state (and/or city). This is called a differential rate of pay or non- production pay. If you choose to use a differential rate, this policy and the differential rate must be presented to and acknowledged by your employees prior to the event. I recommend including this information in your employee handbook. For hourly employees, overtime rules still apply. All hours your employees spend in training or traveling to and from educational events are subject to the usual state and federal 40-hours-per-week rule for overtime pay. If you've used a differential rate for compensable travel and/ or seminar time, so that the employee earned a lower rate for time spent in training, you would use a weighted average to calculate the appropriate overtime rate for that week. Given how complex seminar and travel pay rules can be, you may be realizing right about now that every practice, clinic or medical spa you know of is getting something wrong. In the hundreds of employee handbooks I've reviewed over the last decade, 90% of them have illegal policies regarding seminar and travel compensation. That's why I recommend that practice owners and managers have their handbooks periodically reviewed and corrected by an expert in HR and employment law. These rules are very clear, and no in-house policy negates them. Paul Edwards is the CEO and co-founder of CEDR HR Solutions, a provider of individually customized employee handbooks and HR services for healthcare employers of all specialties. He is an HR expert with 25 years of management experience and the author of the blog HR Base Camp. Contact him at 602.476.1418, pauledwards@cedrsolutions.com. You do have the option of setting a different, lower rate of pay for time spent in training. This is called a differential rate of pay.