Suppose an employee has
a stress-related condition and it is affecting her work performance. As a
condition of continued employment, you require the worker to attend sessions
with a mental health counselor. Then, the employee turns around and says you
have to pay her for the time spent traveling to and attending those sessions.
Do you? We’ll examine a recent ruling from a federal court of appeals that
provides some answers.
Employee Outburst
Karie Sehie was an
emergency dispatcher for the city of
primary responsibility was fielding 911 calls. One day, at the end of her
scheduled eight-hour shift, she was told to work another shift because a
co-worker was sick. Although Sehie protested, her supervisor said she had to
stay. About 30 minutes into the second shift, Sehie grew increasingly angry and
upset about having to work the extra time and abruptly left work.
Sehie returned to work
the next day for her regularly scheduled shift, but first spoke with her
therapist and took some medication for stress. When she returned to work, she
reported the absence as a workrelated injury.
Employee Must Undergo
Counseling—or Lose Job
The city required Sehie
to submit to a fitness-for-duty evaluation because she left work that day. The physician
who performed the exam reported she was fit for duty but recommended, as a condition
of her continued employment, that she attend weekly psychotherapy sessions for
six months. The city then ordered Sehie to see its therapist, Dr. Nucci,
outside of her regular 40-hour work schedule. Sehie asked to see her own
therapist, but the city refused.
Over the next four
months, Sehie attended 16 sessions with Dr. Nucci, spending an hour at each
session and traveling two hours back and forth by car each time.
Overtime Lawsuit Filed
Sehie then voluntarily
resigned. Soon after, she sued the city, claiming that under the federal Fair
Labor Standards Act (FLSA), she was entitled to be paid for the time outside of
her normal work schedule she spent attending and commuting to and from the
counseling sessions. A district court agreed with Sehie, ruling that the city
had to compensate her for the time because the counseling sessions primarily
benefited the city. The court awarded Sehie $3,080 in back pay and damages. The
city appealed.
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Does Time Benefit
Employer?
Now a federal appeals
court has affirmed the lower court’s ruling. FLSA regulations, said the court,
state that an employee must be paid for all time the person spends 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 or the business.” And
the court pointed
out that in a somewhat
similar case, the U.S. Department of Labor took the position that when an
employer requires an employee to have physical or mental exams during nonwork hours
as a condition of continued employment, the time spent undergoing the exams
counts as hours worked.
Here, the city didn’t
dispute that Sehie exerted herself or that it required her to do so. The city,
however, argued that the counseling sessions were primarily for Sehie’s
benefit—so she wouldn’t abandon her job again and lose her job as a result. But
the court disagreed, finding that the counseling sessions were meant to help
Sehie avoid and manage emotional problems at work so that she could properly
respond to emergency calls and remain on the job in a position that was very
short staffed. These reasons, said the court, all benefited the city. Other
facts also indicated the sessions were for the city’s benefit: the sessions were
a mandatory employment condition; Sehie wasn’t permitted to see her own
therapist; and the city paid 90 percent of the fee for each session.
Impact of Decision
This case was decided
under federal law, but the result would likely be the same under
typically more protective of employees.
requires that an employee be paid for any time he or she is subject to the
employer’s control or time when the employee is “suffered to or permitted to
work.”
Whether you must
compensate an employee for time spent attending counseling sessions will likely
depend on whether the counseling is an employment condition and you specify the
treatment provider. Also, consider scheduling the sessions during the
employee’s normal work hours so the time spent attending them won’t be hours worked—and
you won’t incur overtime payments.
The case is online at
www.ca7.uscourts.gov/.
_
1 Overton v. Walt Disney
Co.,
Court of Appeal (2nd Dist.) No. B179854, 2006
2 Morillion v. Royal
Packing Co.,
Supreme Court No. S073725, 2000