Whether pre-employment state-mandated security officer training time is compensable
STATE OF CALIFORNIA Arnold Schwarzenegger, Governor
DEPARTMENT OF INDUSTRIAL RELATIONS
Headquarters
P. O. Box 420603
San Francisco, CA 94142
Tel: (415) 703-4810
Fax: (415) 703-4807
Angela Bradstreet
State Labor Commissioner
Division of Labor Standards Enforcement
August 29, 2007
Jeff Flint
CALSAGA
915 L Street, #C251
Sacramento, CA 95814
Re: Whether Pre-Employment State Mandated Security Officer Training Time Is
Compensable.
Dear Mr. Flint:
Your letter dated July 11, 2007, was referred to me by the Labor and Workforce
Development Agency, for response. We appreciate your proactive approach in requesting
guidance regarding the compensation issues raised in your letter.
As you pointed out, the Security Officer Training Law, effective July 1, 2004, made
significant changes to the regulation of the security industry. The Department of Consumer Affairs
has jurisdiction over the private security industry under the Private Security Services Act pursuant
to B&P Code §§7580 et seq. (the Act) and is administered by the department's Bureau of Security
and Investigative Services (BSIS). The training provisions raised the minimum mandatory training
for security officers from 3 to 40 hours, and further, require 8 hours of refresher training every 12
months thereafter. (B&P Code §§7583-7583.6) Your questions are essentially whether private
security companies who offer mandated security officer training prior to employment are required
to compensate the trainees for time spent in the training program. For the reasons stated below, the
opinion of the Labor Commissioner is that time in the pre-employment training program does not
require wage compensation under the facts presented in your letter.
The provisions of the Business & Professions Code you referenced in your letter make a
distinction between persons engaged in the operation of a private security business which must be
licensed as a private patrol operator, and private security guards who must be registered as
security guards and work for private patrol operators.¹ Although parts of your letter refer to
¹ Under regulations promulgated under the Private Security Services Act, a "licensee" means a "private patrol
operator" and a "guard or registrant" means a uniformed employee of a private patrol operator, an alarm agent of an
alarm company operator, and any person employed or compensated by a private patrol operator, or any lawful
business as a security guard, and in the course of such employment, carries a deadly weapon. (16 CCR § 625(a)-(b))
individuals who are licensed, your description of the two training scenarios addresses individuals
seeking to become security officers. Also, the statutory provisions you reference pertain to training
for registration of security officers. Accordingly, this letter will focus on the required security
officer training in order to be a registered security officer, and not the licensing of a private
security operator (business).
A brief review of the mandatory training reveals that completion of the required training is
a prerequisite to initiating work and continuing to work as a registered security officer in
California. (See B&P Code §§7583.3(a), 7583.6(a)) The number of hours required for application
for registration is 8 hours of training in "power to arrest." (B&P Code §7583.8) Upon completion
of the 8 hour training, the application for registration and criminal history clearances, a security
guard registration card is issued. Every newly registered or employed security guard must then
complete 16 hours of training (8 hours of mandatory courses) within 30 days from the day the
registration card is issued or the day the guard begins employment. The remaining 16 hours of
training (including 8 hours of mandatory courses) must be completed within the first 6 months
from the day the registration card is issued or the day the guard begins employment.
An individual is required to be registered by the BSIS to work as a security guard. The
curriculum for the required training is developed pursuant to departmental regulations (B&P Code
§7583.6(d)) and the required course of training "may be administered, tested, and certified by any
licensee [private patrol operator], or by any organization or school approved by the department"
(B&P Code §§7583.6(e), 7583.7(a); italics added for emphasis.) A course provider or private
patrol operator must issue certificates to the guard for satisfactory completion of a required course
and a private patrol operator may provide additional training programs and courses in addition to
the required training. (B&P Code §7583.6(c); 16 CCR §643(b)) Further, a person may apply for
registration whether or not he is employed at the time of application. (16 CCR §625.1(c)) The
Director of the Department of Consumer Affairs is responsible for fixing the qualifications of
licensees and security guards, establishing procedures for local authorities to file charges for
failure to meet standards for registration, and for investigation of charges. (B&P Code §7581),
issuing citations and assessing administrative fines for violations of provisions of the Act, and may
deny, suspend, or revoke a license or registration (B&P Code §§ 7587 et seq.)
Against the backdrop of the specific requirements for regulating the private security
services industry, the Division of Labor Standards Enforcement (DLSE) has jurisdiction over the
enforcement of provisions of the Labor Code and Industrial Welfare Commission (IWC) Orders
with respect to payment of wages to workers. IWC Minimum Wage Order (MW-2007) and Order
4-2001 regulating the wages, hours and working conditions in the Professional, Technical,
Clerical, Mechanical and Similar Occupations apply to security guards. The Order defines
"employ" to mean "to engage, suffer, or permit to work." However, the definition of "suffer or
permit to work" was not intended to stamp all persons as employees who, for their own advantage,
work without express or implied compensation agreement. (See O.L. 2000.05.17, citing Walling v.
Portland Terminal Company, 330 U.S. 148, 152 (1947))²
² The coverage of the IWC Orders extends only to employees. If the individual is not an "employee," there is no
employment relationship with an employer and the wage orders do not apply. (O.L. 1988.10.27) An "employee"
means "any person employed by an employer" and "employer" means "any person as defined in Section 18 of the
Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the
wages, hours, and working conditions of any person." (IWC Order 4-2001, § 2(F) and (H))
Historically, DLSE has used an 11 prong test to evaluate certain training programs and
determine whether individuals are exempt from minimum wage requirements as "trainees." (See,
O.L. 1998.11.12 and O.L. 1998.11.12-1) Although the test provides a useful guideline for review
of general training programs, it is not exclusive; and moreover, does not appropriately address
such state-mandated training programs as here which are administered under a comprehensive
statutory scheme with extensive oversight of program curriculum and compliance vested with a
state agency.
Your letter indicates that security companies under your membership offer a regimented
program which follows the curriculum established by BSIS pursuant to statutory requirements.
Indeed, it is clear that the Security Officer Training Law specifically allows a licensed private
security operator to provide required training as an alternative to an approved provider such as a
vocational program.
The two described scenarios in your letter reveal several salient points. The state mandated
classroom training provided by the private security operator for required registration as a security
officer is at no cost to the participants and is conducted prior to any offer of employment. Only
after an individual successfully completes the training under either of the two programs (24 hours
or 40 hours) and meets the company's hiring requirements, an offer of employment may be
extended to the individual. The scenarios appear to be consistent with the above stated provisions
of the Act which expressly allow for security guard training and registration independent of
employment with a private security operator.
The mandated security guard training requires that the first 24 hours of training under the
required curriculum consist of classroom training on basic skills and practices in the industry
covering mandated topics and includes lectures, written materials, and exercises. (16 CCR §
643(a) & Appendix) Additionally, in the first described scenario where the first 24 hours of
training is provided at no cost, the training consists of generic industry training with the final 16
hours of training (which includes elective courses) conducted post-hire, and thus, such individuals
are compensated by the operator. Under both scenarios, the 8 hour annual refresher course is
compensated since it is conducted post-hire.
In the security guard training programs described in your letter, there appears to be no
work performed directly or indirectly by the participants for the private security operators. The
participants in the program participate in the described training programs which cover state
mandated courses with assigned hours for each course. The participants' training is for their own
advantage (and at no cost) in order to become state-qualified security guards. Participants must
receive certificates of completion for the courses successfully completed which can be used in
employments with other operators in the industry. The fact that employment may be offered after
completion of the specific training provided by the private security operator does not itself transfer
the relationship to an employee-employer relationship. And while there is a conceivable general
benefit to the private security operator in that it may offer employment to individuals upon
successful completion of the training and otherwise meeting hiring requirements based upon their
exposure to such prospective employees, there is no unfair economic benefit derived from work
during the period of training the individuals.
It is also appropriate for DLSE to consider provisions of the Private Security Services Act.
Under the Act's definitional provisions, the Legislature provided that the "employee-employer"
relationship means "a relationship in which an individual works for another, the individual's name
appears on the payroll records of the employer, and the employee is under the direction and
control of the employer." (B&P Code §7580.10) "Employer" means "a person who employs an
individual for wages or salary, lists the individual on the employer's payroll records, and
withholds all legally required deductions and contributions." (B&P Code §7580.8) "Employee"
means "an individual who works for an employer, is listed on the employer's payroll records, and
is under the employer's direction and control." (B&P Code §7580.9) While not singularly
determinative for purposes of enforcing wage payment requirements under the Labor Code and
IWC Orders, these definitions govern the Act which reflects a declared objective to regulate the
private security industry and defining the employment relationship under the Act and should be
considered in determining the existence of an employment relationship. Under these definitions,
the mandatory training programs do not appear to qualify as an employee-employment relationship
because there is no work performed for the private security operator, no wages or salary is
received, and the individuals are not listed in the employer's payroll.
Based upon the above, there appears to be no employment relationship established between
the individual and the private security operator for which wage compensation is required to be
made by the private security operator with respect to the two described programs.
It follows from the above analysis, however, that a different result may ensue if there are
either assignments to work for, or individuals are otherwise allowed to work on behalf of, the
training private security operator since, then, the individual would be engaged, suffered, or
permitted to work by the operator. This caveat is critical since the Act provides that the balance of
32 hours of required training (after the 8 hour "power to arrest" course and issuance of registration
by BSIS) may be completed within a scheduled period not exceeding 6 months after registration or
the day the guard begins employment. Since it is conceivable that an individual may qualify for
registration after the initial 8 hours of required training and could be assigned to perform work for
the operator during the balance of the training period which benefits the operator's business, such
activity would change the individual's status to an employee of the operator. Thus, if there is
assigned regular or special work performed by the individual for the private security operator
aside from the classroom program during the period of such training, compensation would be
required under the IWC Order.
As previously indicated, the training programs described by you consist of only classroom
training in required courses by an authorized provider (private security operator). Based upon your
representation that an offer of employment may be made after successful completion of the
training program and after meeting company hiring requirements, it is reasonable to assume that
no promise of future employment for enrollment is made at the inception of the programs which
might provide a sufficient inducement to enroll or otherwise create an enforceable expectation
(promise) of employment. Further, the mandated program requirements do not provide for a
clinical program component such as an outside post assignment (e.g., to a client of the operator)
which might call for a different analysis for purposes of wage compensation under state wage and
hour law. (E.g., O.L. 2000.05.07 [employment status of culinary externs under economic realities
test requires factual analysis of work performed]; O.L. 1993.01.07 [vocational trainees in program
requiring on-site "hands on" experience with businesses])
In summary, based upon our review of the relevant provisions of the Private Security
Services Act, including the state-mandated security guard training requirements for qualification to
work as a security guard in California, the two security training programs described in your letter,
and the current law regarding payment of wages required under the Labor Code and IWC Orders,
upon the facts described by you, the programs do not require payment of wages for pre-
employment, mandatory training provided by private security operators.
This opinion is, of course, based only upon the representations in your letter regarding the
general training programs which you stated are "typically set up two different ways" as described.
Any specific training programs implemented by a private security operator which may vary from
your descriptions are not covered in this opinion, and a blanket approval of any training program
without regard to variations as a result of implementation is not intended. Also, the question of
whether any particular individual is under an employment relationship with a specific operator will
depend on the particular facts relating to his or her actual participation in the training program.
This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have provided a full
and fair description of all the facts and circumstances that would be pertinent to our consideration
of the questions presented. Existence of any other factual or historical background not contained
in your letter might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private litigation concerning the
issue addressed herein. You have also represented that this opinion is not sought in connection
with an investigation or litigation between a client or firm and the Division of Labor Standards
Enforcement.
I sincerely hope the above is both responsive to your inquiry and will assist your
membership in successfully and lawfully conducting private security operations that provide
mandated security guard training for security guards in this important industry and which comply
with California wage and hour laws.
Sincerely,
ANGELA BRADSTREET
Labor Commissioner and Chief
Division of Labor Standards Enforcement
[Attached request letter]
July 11, 2007
Ms. Victoria Bradshaw
Secretary
Labor and Workforce Development Agency
801 K Street, Suite 2101
Sacramento, CA 95814
Re: Whether certain state-mandated Security Officer training time should be
considered compensable
Dear Secretary Bradshaw:
The California contract security industry has seen a number of changes over the last few
years. California has the most stringent security officer criminal background and training
requirements in the nation. All individuals who apply for a security officer license issued
by the State of California must first undergo a mandatory criminal background check
conducted by the Department of Consumer Affairs' Bureau of Security and Investigative
Services (BSIS). The background includes a criminal search through the criminal
databases of California Department of Justice and the Federal Bureau of Investigation.
Perhaps the biggest and most far-reaching change for the contract security industry has
been the passage of California Business and Professions Code Sections 7583-7583.6
("BP 7583") the "Security Officer Training Law". The Security Officer Training Law,
which was passed in 2002 and took effect on July 1, 2004, raised the minimum
mandatory initial training for security officers in California from three to forty hours.
Additionally, it requires an 8-hour refresher course every 12 months after completion of
the 40-hour course (see Special Notice attached). California's Security Officer Training
Law far exceeds the training and criminal background checks required by other states.
The purpose of this letter is to request that the Labor and Workforce Development
Agency provide guidance as to a wage-hour issue involving this training.
Under BP 7583-7583.6 California security guards are required to obtain and maintain a
security guard license as a prerequisite to working as a security guard. One of the
requirements in obtaining a security guard license is the successful completion of training
regarding security services. BP 7583 describes the training security guards are required
to successfully complete as a condition of receiving a security guard license.
Members of our association are security guard companies who offer to security guard
applicants the training described in BP 7583. The training is offered as a regimented
program which follows the curriculum established by the California BSIS, the state
agency which regulates the security industry. Security companies' training programs are
typically set up two different ways, as follows:
California Association of Licensed Security Agencies, Guards & Associates
1. The Companies provide, free of charge, the first twenty-four hours of training in a
classroom environment to individuals seeking to become security officers. These
twenty-four hours are generic security industry training and individuals are not
compensated for their time. After successful completion of the twenty-four hours an
offer of employment may be extended to the individual if the individual meets the
company's hiring requirements. At that time the companies continue the training
with the remaining sixteen hours of elective training. The final sixteen hours are
compensated as they are conducted post hire and in some cases is company specific.
All forty hours comply with the BSIS approved curriculum. The eight hour annual
refresher course is compensated as it is conducted post hire and in some cases is also
company specific.
2. The Companies provide training covering all forty hours of generic security industry
training in a classroom environment which comply with the BSIS approved
curriculum to individuals seeking to become security officers. After successful
completion of forty hours training, an offer of employment may be extended to the
individual if the individual meets the company's hiring requirements. The eight hour
annual refresher course is compensated as it is conducted post hire and in some cases
is company specific.
The license issued to an individual who successfully completes the training is the
property of the individual, not the security company. The curriculum offered by security
companies is the same as that which is offered by vocational training facilities.
My members believe that as to prospective employees the time spent in state-mandated
training is not compensable time, and security companies are not legally obligated to pay
prospective employees for such pre-employment training time. We are requesting your
advice on this interpretation, and request that you confirm that time spent during the pre-
employment, non-company, state-mandated training for an individually-owned state
license, is not considered compensable time.
Thank you for taking the time to consider this request. If you have any questions that
may assist in responding, please do not hesitate to contact me.
915 L Street, #C251 Sacramento, CA 95814 P. 916-930-0552 866-310-2556 F. 916-930-0702
www.calsaga.org [email protected]
Cc: Kelly Jensen, Sloat, Higgins, Jensen & Associates