When should an employer pay for training?

A recent arbitration ruling in Ontario has reaffirmed that employers are not obligated to compensate employees for voluntary training time — even if the hours and effort involved are considerable.

The case underscores the importance of clear communication between employers and employees regarding training obligations, the distinction between required and voluntary learning, and the potential legal risks associated with ambiguous messaging.

It's quite a common dispute, says Lori Anne Khaouli, an associate lawyer at Grosman Gale Fletcher Hopkins in Toronto.

“There can be misinterpretations about whether something is actually compulsory by an employer versus whether it's voluntary.”

The takeaways about this case are really about messaging, education and understanding, to prevent these sorts of problems, says Brandon O’Riordan, vice-president of Bader Law in Oakville, Ont.

“The best practice is always clear, frank communication,” he says, citing points to consider.

“When you are HR and you're communicating about training programs, what do you need to say? What do you need to be aware of? Where can you be getting you and your employer in trouble, in terms of creating liability for payment, and what should you be saying if the there isn't going to be payment for the training?”

Training for RPNs at hospital

The dispute — International Union of Operating Engineers Local 772 v. Kemptville District Hospital — began when two RPNs at Kemptville District Hospital enrolled in a wound care certification program, which was covered by the hospital as part of a quality improvement plan. The training provided nurses with advanced wound care skills, reducing the hospital’s reliance on an external consultant.

The nurses were informed that their tuition would be paid for, and the training itself would be done in their own time. However, once the program began, they realized the coursework was far more demanding than expected — requiring up to 30 additional hours per week outside of their regular schedules.

The RPNs requested paid time off or financial compensation for their study hours, arguing that the training was essential to hospital operations. But the hospital refused further compensation and said the course could be dropped.

The union argued that the RPNs should have been paid under the education leave provisions of the collective agreement and that the hospital’s refusal to compensate them violated Ontario’s Employment Standards Act (ESA).

The union cited the education leave provision in the collective agreement, which stated:

"Should the hospital require an employee to undertake a course of studies in order to upgrade his/her qualifications, the hospital shall grant the employee leave of absence with pay and shall reimburse the employee for tuition costs, provided the employee successfully completes the course of studies."

But the hospital maintained that the training was entirely voluntary. The RPNs had applied for the program of their own accord, were aware they would not be compensated for their study time, and were given the option to withdraw from the program without repercussions.

Because of this, the hospital argued, the education leave provision did not apply, and the training did not meet the criteria for paid work under the ESA.

No compensation required for training

Arbitrator Elizabeth McIntyre ruled in favour of the hospital, dismissing the grievance. She found that the RPNs were never required to take the course, and therefore, they were not entitled to paid education leave under the collective agreement.

"A mere request to pursue a course of studies is not sufficient to engage the employer’s obligation to provide paid leave."

The arbitrator also emphasized that under Ontario’s employment regulations, training is only considered "work" if it is required as a condition of employment: "The grievors were not compelled by the hospital to undertake or continue the wound care course."

Defining ‘required’ vs. ‘voluntary’ training

One of the most critical aspects of this case — and of training compensation disputes in general — is how employers define "required" versus "voluntary" training.

Khaouli says that courts and arbitrators assess whether training is required based on whether it is a condition of employment.

"If it's a requirement for someone to keep their job, for continued employment, or to be hired in the first place, that’s what they’re going to look at.”

She points out that Ontario’s ESA includes specific criteria for when training is considered "deemed work,” meaning “work that’s requested by the employer, or they’re not really giving you an option — so it’s basically ‘You’ve got to do this training, or there’s going to be some kind of consequence.’”

If there are no consequences for an employee refusing the training, says Khaouli, “then it's going to be a pretty hard argument to say that it was a requirement of your job.”

O’Riordan says that required training could, for example, involve a new safety regulation mandating that all employees complete a compliance course, so training would be compensable.

However, if an employer offers a skills-development course that employees may choose to take, even if it could improve their career prospects, that is generally considered voluntary, he says.

"If you’re just throwing it out there to say, ‘This is kind of a cool benefit we offer employees — we give them the chance to upgrade or augment their skills to make themselves more hireable, give themselves opportunities to advance’ — that’s not going to attract liability to pay. It’s just about how you pitch it.”

O’Riordan adds that unionized workplaces often have additional contractual obligations regarding training compensation with the collective bargaining agreement.

“Basically, your collective bargaining agreement can't violate the statute, but as long as it doesn't, then it governs.”

Clear communication key to avoid disputes

A big factor in the decision was the hospital’s efforts in communicating its policy around compensation for this type of training.

“That's a big takeaway for employers from this case, is that if they're going to be implementing any kind of training, they have to be very clear about whether it's actually compulsory or whether it's a voluntary training that employees have the option of enrolling in,” says Khaouli.

“And if they get pushback from the employees, it's good to have something in writing that shows that they actually had this discussion about whether it was required or not.”

O’Riordan emphasizes that the best way to avoid disputes is to be explicit in all communications.

“Be frank in the communication about whether they’re going to get paid for it or not, and make sure that you’re not running afoul of the requirement aspect of it. As soon as it’s a required thing, you’re going to be on the hook.”

No pressure to take training

It’s also important to ensure that employees do not feel pressured or coerced into taking voluntary training. Khaouli notes that disputes often arise when employees believe they are expected to participate in training, even if it is not explicitly required.

"One person may interpret it as they’re being pressured into taking the training because they think that they might lose their job or [face] some other consequence.”

Situations may pop up when there’s ambiguity, she says, “because [employees] may interpret it differently than the way that the employer is communicating it to them, because they may have felt that it was compulsory.”

Sometimes, management is guilty of “playing a game,” says O’Riordan, in suggesting that something is going to happen if people don’t take the training, but never openly saying it.

“It looks like you're being kind of ‘voluntold’ where someone said… ‘If you really want to add value to the company, I think you really need that project manager certificate, because it's holding us back in terms of what we can give you,’” he says.

“At that point, it would still be voluntary, but the person might try and make an argument that they were sort of coerced into it.”

Policy for training

Most employment contracts don’t necessarily talk about training but it’s not a bad idea, according to O’Riordan.

“It should lay out for employees: 'Hey, this is what you can expect if training is required, we will schedule it during working hours, to the extent possible, and you will be paid for it.’”

If, on the other hand, the training is a voluntary exercise or for skill building, then the employer would explain that they may contribute to the tuition or books but not for the time required.

“There should be no expectation in that situation that you're going to get wages for sitting in class or working on your assignments,” he says.

Employers may also want consider a clawback provision in case an employee leaves the company shortly after they took paid training, says O’Riordan.

“That's what you'd expect to see in a larger, non-public company and non-unionized company — they'll probably have a little agreement, which says, ‘We're going to pay for all this, but you agree that if you leave within six months of us making the last payment on this thing, you're going to pay us back 50% of it’ — or something like that, to make sure that the company gets the value from it.”

Transparency about employee training

One of the big reasons this particular training became a problem is because the employer messed up on expectations, according to O’Riordan.

“This is a real case where expectations and reality were different in terms of the type of time commitment these guys thought they were signing up for.”

It’s a best practice for HR or management to be upfront about what will be required in the training, says Khaouli.

“The best approach, ultimately, is to just have the employer be as transparent as possible before the employees enroll in the training, if they know that it's going to be arduous training,” she says.

“I would expect that an employer who is presenting a training opportunity would have done their due diligence as well, of knowing what they're getting their employees into if they do enroll in it, so if a problem does arise, they should be open to discussing it with the employee to avoid these kind of situations”

And while it may be a bit far-fetched, employers could even face a situation where someone claims constructive dismissal because their workload has significantly increased with mandatory training, says Khaouli.

“Employers need to be careful about how they approach required training. It should be reasonable in the circumstances, it should not be something that's way beyond excessive — where people are working significantly more hours and they're not being compensated properly — because that's just going to open up a whole new host of problems.”