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A Better Partnership

Publications

Apr 2006
15
April 15, 2006

Employers May Be Required to Compensate Employees for Time Spent in Counseling

It is not uncommon for employers to mandate that an employee engage in some type of psychological counseling as part of a last chance or other agreement with the employee. Most employers probably never considered the possibility that they may need to pay the employee for the time spent in these sessions. Based on a recent Seventh Circuit opinion, however, that time may be compensable under the Fair Labor Standards Act.

In Sehie v. City of Aurora, a City employee abruptly left work after becoming angry that she was being required to work a second shift. Before returning to work, the City required the employee to submit to a fitness-for-duty evaluation. The physician who performed the evaluation stated that the employee was fit for duty, but recommended as a condition of her continued employment that she attend weekly psychotherapy for six months. The City adopted the physician's recommendation and required the employee to see its therapist. The employee subsequently attended 16 uncompensated sessions with the therapist. After resigning for unrelated reasons, the employee sued the City claiming that she should have been paid for the time she spent in the sessions and time spent commuting back and forth to the sessions.

In finding for the employee, the Court relied on the fact that the sessions were a mandatory condition of continued employment and that the employee was required to see the Company's own therapist, rather than her own. The Court determined that these sessions were primarily for the benefit of the City and thus must be compensated by the City. In so finding, however, the Court emphasized the very fact-specific nature of this case and stated "by no means does our ruling mean that every time an employer gets help for its employees, the employee must be compensated for hours worked."

Based on this case, however, employers should be very careful when they require employees to undergo counseling as a condition of continued employment. If such counseling is demanded by the employer and the employee is required to see the employer's counselor/therapist, the time spent attending and traveling to and from counseling sessions will likely be deemed compensable under the FLSA.

If you have any questions regarding the Fair Labor Standard Act and how it affects your company, please feel free to contact a member of our Human Resources Group or Jon Kok at 616.752.2487 or jkok@wnj.com.
 

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