If you make an offer to a candidate that is contingent on passing your training classes, can you make those training classes unpaid?
The answer to your question depends on whether the time spent in training is hours worked as defined under the federal Fair Labor Standards Act (FLSA). The FLSA requires that a minimum wage be paid for all hours an employee is “suffered or permitted” to work and that an overtime wage be paid for all hours “worked” over 40 in a week. The FLSA does not specifically define “hours worked.” Generally speaking, work time includes all time that employees spend engaged in the principal activities that they are employed to perform.
The Department of Labor (DOL) provides the following information on whether training time is considered hours worked.
First, training programs conducted during regular working hours constitute work time and must be compensated as such, according to the federal Fair Labor Standards Act (FLSA).
Second, training conducted outside of regular work hours must be compensated unless all of the following are true:
• Attendance is entirely outside normal working hours and is voluntary (attendance will not be found voluntary if the employee is led to believe that attending is critical to his or her job).
• The training is not directly related to the employee’s present job.
• The employee does not do any productive work during the program.
A training program is considered directly related to the job if the training is designed to help the employee handle the present job more effectively (but voluntary attendance at school outside the workplace, after hours is not work time, even if it is related to the employee’s present job). Time spent in training for a new job or in the development of new skills is less likely to be classified as compensable work time.
Based on this information, it appears that the type of training you describe in your question would be hours worked and should be compensated. You may find it helpful to consult with local employment counsel who can consider the specific type of training especially if you want to proceed with the training as unpaid.