Different gyms pay fitness instructors in different ways. For instance, they might be paid a set amount per class. Or they might be paid by the hour, but only for the hour (or hours) they are actually teaching. As a result, fitness instructors are rarely compensated for all the work they do – selecting music, creating routines, setting up equipment, and answering gym member questions. These routine tasks can add uncompensated time to each class.
Recently we’ve learned of gyms that are requiring their instructors to do much more off-the-clock work. For instance, instructors are asked to help set up new equipment, a project that takes hours, off-the-clock. Or they are asked to complete training sessions, again for many hours, off-the-clock. Asking an employee to work more than a few minutes off-the-clock is not permitted under Kentucky or federal wage and hour law.
For Profit Businesses
Under the Fair Labor Standards Act (FLSA), a federal law that regulates wages and hours of employees, an employee cannot volunteer to work at a for-profit employer. So if a fitness instructor works for a for-profit gym, she cannot volunteer to work without pay in any capacity. And her employer cannot require her to work as a volunteer for the for-profit business. For example, if an employer requires its group exercise instructors to come in and work for a day setting up all the new fitness equipment that has just been delivered, this time must be paid.
If an employee works before or after her class but is only paid for the time she spends teaching the class, this time may also have to be paid. The question is whether the time spent before and after class is “de minimus.” If it is just a few minutes, then the court is probably going to consider the time non-compensable or unpaid. But if the instructor is regularly required to be in the class 15 minutes early to set up spin bikes, the sound system or other equipment so that class starts on time, then the time may have to be paid. Likewise, if the instructor spends time after class interacting with members, cleaning up equipment or completing paperwork related to the class, that time may be compensable if it regularly takes more than a few minutes.
The law is not as clear when the employer is a non-profit (like a YMCA). Non-profit employees are allowed to volunteer for their employers – but they cannot volunteer in the same capacity that they work. So if the employee is a spin instructor, she cannot volunteer to work for the non-profit gym as a spin instructor. But she can, for example, volunteer at a fun run organized by the gym.
Even at a non-profit, if the employee is performing work off-the-clock that is necessary to the class, like equipment set up or clean up, and this work regularly takes more than a few minutes, then the employee should be paid for the time.
When an employer requires an employee to attend training that is related to the employee’s current position, the employee must be paid for the time spent in the training session.
Training time may only be unpaid when:
(1) it occurs outside the employee’s normal working hours,
(2) it is truly voluntary,
(3) the training content is unrelated to the employee’s current position, and
(4) no other work is completed during the training time. Unless all four conditions are met, the employee must be paid for the time spent in training.
For example, if the employer requires all group exercise instructors and personal trainers to attend an annual training session on CPR and first aid, this time must be paid because it attendance is required and the content is related to the current position. On the other hand, if a gym offers a lunch time training session on gym management and opens the class to all exercise instructors who are interested in progressing to a management position, the time spent in training does not have to be paid. This training session may be unpaid because the class is voluntary and unrelated to the instructor’s current position.
Employees who sue their employers for unpaid wages may recover the unpaid wages, liquidated damages and attorney fees and costs. The unpaid wages amount is simply the amount of money that was earned but not paid. Liquidated damages is an amount of additional money that the Court determines should be paid by the employer. Liquidated damages can be set at any amount between zero and the amount of unpaid wages. Attorney fees and costs are also determined by the Court and include a payment to the attorney who represented the employee and payment of the costs associated with filing the case (for example, the filing fee charged by the Court to initiate the litigation).
Many people hesitate to sue their employer for unpaid wages because they fear retaliation. Certainly there are employers who will terminate an employee for reporting unpaid wage and for taking action to obtain their rightfully earned pay. But the FLSA and Kentucky’s wage and hour law prohibit retaliation for taking action under those laws. Employees who are terminated for filing a suit to recover their wages may be able to sue to recover the lost wages and benefits due to the termination.
For employees who are concerned about retaliation, it may also be possible to wait until after leaving the job to make a claim. Under the FLSA, employees have two years to make a claim and under the Kentucky law, employees have five years to make a claim. But it is important to calculate those dates carefully. For example, if the employee worked off-the-clock from January 2015 through November 2015, she must make a claim by January 2017 to recover the unpaid wages for that entire time. If she waits until June 2017, she can only make a claim for wages that were unpaid from June 2015 through November 2015.
If you have worked as a fitness instructor and were required to work off-the-clock or attend training without pay, please contact us to discuss your situation.