By Michael R. Lied, Esq. 

Kari Sehie was a former emergency dispatcher for the City of Aurora.

At the end of Sehie’s eight hour shift on December 14, 2000, her superiors instructed her to stay and work another shift because a co-worker was sick.  Sehie protested, but her supervisor required her to stay.  A half-hour into the new shift, Sehie became very angry about having to work another shift. She apparently decided there would be no emergencies and abruptly left work.  Between leaving work on December 14th and returning the next day, Sehie spoke with her therapist and took medication for stress.  When Sehie returned to work, she reported the absence as a work-related injury.

Aurora required Sehie to submit to a fitness for duty evaluation.  The physician said that Sehie was fit for duty, but recommended as a condition of her continued employment that she attend weekly psychotherapy for six months.  Aurora agreed and ordered Sehie to see its therapist, but outside of her regularly scheduled work hours.  Sehie asked to see her own therapist, but Aurora refused Sehie’s request.  Sehie attended sixteen sessions, spending an hour at each session.  Sehie also spent two hours traveling back and forth by car to each session.

Sehie later sued Aurora under the Fair Labor Standards Act (“FLSA”), claiming that Aurora should have paid her for the time she spent attending and commuting back and forth to the counseling sessions because this time was beyond her normal forty-hour work week.  The district court agreed, and Aurora appealed the judgment against it.

The general FLSA rule is that an employee must be paid for all time spent in physical or mental exertion, whether productive or not, controlled and required by the employer, and pursued primarily for the benefit of the employer. 

Aurora argued that the counseling sessions were not pursued primarily for its benefit.  The court of appeals disagreed.  Attendance at the sessions was a mandatory condition of Sehie’s continued employment.  This requirement, combined with the fact that Aurora was short of telecommunications staff, created a strong inference that the counseling sessions were for Aurora’s benefit.  In addition, Aurora would not let Sehie see her own therapist.  Instead, Aurora paid for 90 percent of the cost of each counseling session with the therapist it selected.

The purpose of the required counseling sessions was to enable Sehie to perform her job duties and relate to her co-workers more effectively and at a higher skill level by addressing personality deficiencies.   
The court also consulted a regulation cited by Aurora.  29 C.F.R. § 785.43 reads: 

Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he is working constitutes hours worked.

Aurora argued that this regulation meant that an employee who receives treatment for a work-related injury must receive compensation only if the treatment is required by the employer and it occurs during the employee’s scheduled hours of work.
 
The appeals court disagreed and noted that the Department of Labor has issued opinions concluding that when an employer requires an employee to attend physical or mental examinations, including psychiatric examinations, during non-working hours as a condition of continued employment, the time spent undergoing such examinations constitutes “hours worked” and is therefore compensable under the FLSA.

The court emphasized the fact-specific nature of its inquiry.  The ruling does not mean that every time an employer gets help for its employee, the employee must be compensated for hours worked.

This case provides a reminder of a basic concept under the FLSA.  The employer is liable for hours it requires the employee work, whether productive or not, or that the employer suffers or permits the employee to work.  An example of this latter concept is a situation in which an employee works unauthorized overtime.  In that circumstance, even though the employer did not want the employee to work the overtime, those hours must still be paid.

This case provides a reminder of a basic concept under the FLSA.  The employer is liable for hours it requires the employee to “work,” whether productive or not, or that the employer allows the employee to work.  An example of this latter concept is a situation in which an employee works unauthorized overtime.  In that circumstance, even though the employer did not want the employee to work the overtime, those hours must still be paid.

Sehie v. City of Aurora, 432 F.3d 749 (7th Cir.2005).

Michael Lied is a member of the Labor & Employment Group at Howard & Howard. He represents employers in a wide variety of employment, labor and immigration matters. For more information, please contact Michael Lied at (309) 672-1483 or     mrl@h2law.com. 

Copyright 2005 Howard & Howard Attorneys, P.C. This publication is intended to provide information only and does not constitute legal advice.