I have been researching various Hr software packages and notice that several have an On-boarding features that allows the new employer to complete task such as filling out w-4, I-9, insurance and sexual harassment training prior to their first day of work. My question should these task be paid? My guess would be that some of these task, such as sexual harassment training are for the benefit of the company and should be. Has any one come across any rulings on this? I would think that if putting on safety equipment for the job has to be paid, so should some of these task.

If this is an hourly employee, the safest thing to do from a Wage & Hour standpoint is to have the employee complete all the paperwork on the 1st day of hire and pay them for the time spent completing the forms.

Hours worked in a workweek generally include all of the time the employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.

Section 3(g) of the FLSA defines the term “employ” to include “to suffer or permit to work.” Under this definition, work performed voluntarily by an employee may be compensable working time even though not requested by the employer, if the employer knew or should have known the work was being performed. Generally, the employer has the obligation to ensure that no work is performed if it does not want it performed.

It is in the employer’s interest to provide necessary training and to complete onboarding/orientation to a new employee, as this orientation provides the employee with information about the company, an overview of company policies and procedures, etc.  If this training is provided after the employee has been offered the job, it has to be compensated.

However if filling out forms is part of the application process, and the employee has not been offered the position, it is not “hours worked.”

The FLSA’s regulations related to training time would likely apply.  See 29 C.F.R. §§ 785.27 through 785.32.  If the “pre-employment” training, specifically the sex harassment training, is considered hours worked, this could cause confusion as to when the I-9 Form must be completed.  The instructions indicate that employers must examine evidence of identity and employment authorization within three business days of the date employment begins.

First as to the training. Whether or not to pay an employee for training time turns on four factors. According to the DOL you do “not” need to pay a nonexempt employee for training time if 1. Attendance must be outside of the employee’s regular working hours, 2. Attendance is in fact voluntary, 3. Employee does not perform any productive work during such attendance, and 4. Course, lecture, or meeting is not directly related to the employee’s job.  Notice the word “and.”  In other words, to not pay a nonexempt employee for training time all four factors must apply. As to guidance on this, a couple of the most recent DOL are FLSA 2009-13 and FLSA 2009-15.  In the example you give, none of the four factors apply so the time is payable.  As to the completion of the paperwork pursuant to employment, the DOL provided guidance in revised “Fact Sheet #10: Wholesale and Warehouse Industries Under the Fair Labor Standards Act (FLSA)” dated July 2008.  Though that fact sheet addressed a particular industry, it is actually generic advice.  Therefore, as pointed out in another posting if an individual has not been hired and is filling out paper work without any promise of being an employee, the individual need not be paid.  If on the other hand, if the individual has been hired and is undergoing preliminary paperwork activity, the time is payable.  If the employer has this activity occur prior to what is termed the first day of work, effectively that is not the first day of work.  The first day is the day on which this activity occurs. Consequently the suggestion in a posting above is very good about simply doing all this on the first day of work. It makes the situation much clearer for you, the employee and the DOL or respective state wage and hour agency.

Principles for Determination of Hours Worked

29 CFR § 785.7 Judicial construction.

The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer of his business.” ( Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944)) Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer, that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.

The workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place”. ( Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946))

Staunch v. Continental Airlines, Inc.
2008 WL 2744318
Supreme Court of the United States.

The answer to your question probably depends on whether or not the person has been “hired” yet.

Employers must pay employees for their worktime. Thus, if a person is hired by a company and is an “employee,” the employer must pay them for tasks they are required to perform. (Employees must be paid for all work, even if it occurs before the official start of their shift (or employment)).

On the other hand, employers are not generally required to pay non-employees for tasks that are required in order to be considered for hiring (such as filling out an application). In fact, employers can even make applicants work for a short period as a “try out.”

Kent makes a good point. To follow up on this - if an employee fills out form before his official first day of work, he doesn’t have to be compensated, but if filling out the paperwork is part of his first day/s of employment, then that would be a compensable time.
On a more practical level - it’s better to play it safe and pay for that one or two hours than worry about owing wages later with all applicable penalties. So, if you are not sure, it makes business sense to pay to avoid liability and defense costs.