Paying For Off-Hours Activities

If your company sends its employees off for education, training, counseling or psychological testing on their own time, you may have to pay them.

The Fair Labor Standards Act (FLSA) generally requires employers to pay non-exempt employees for all the hours they work. (On the other hand, exempt employees are generally salaried staff members compensated based on their total job responsibilities, not the number of hours they work.)

But the law doesn’t always clearly define “work,” so the courts have sometimes had to fill in the blanks. In general, employers must pay employees for time when:

• They exert themselves physically or mentally.
• The employer requires or controls the activity.
• The activity is primarily for the employer’s benefit.

According to the Labor Department, activities don’t count as work if:

• The time is outside normal working hours.
• Attendance is voluntary.
• Attendance isn’t job related.
• The employee doesn’t perform any other work at the same time.

Thus, activities such as mandatory education, training, testing, and counseling conducted outside the workplace may constitute payable work.

This was illustrated in one court case involving Kari Sehie, an emergency dispatcher whose primary duty was to field 911 calls for a police department in Illinois.

Sehie’s supervisor approached her at the end of an eight hour shift and told her she had to work a second shift to cover for another dispatcher who called in sick. Sehie became upset and abruptly left work without authorization. She consulted her therapist who told her to take medication for stress. The next day, when Sehie reported back to work, she told her employer that the absence was due to a work-related injury.

Her employer required her to undergo a fitness evaluation and the physician recommended that she attend counseling. The employer then required Sehie to attend counseling sessions after normal working hours or lose her job. The sessions took as long as three hours a week, including the time spent driving back and forth from the counseling office.

After attending more than a dozen sessions, Sehie quit her job and sued the city under the FLSA claiming that the employer should have paid her for the time she spent attending and traveling to and from each counseling session.

The Seventh Circuit Court of Appeals agreed, ruling that the counseling was mandatory and primarily benefited the employer. (Sehie v. City of Aurora, No. 04-2308, 7th Circ., Dec. 27,  2005)

Note: To be on the safe side, companies might want to avoid making certain activities a condition of employment. Instead, programs can be made voluntary for employees.

Whether or not a company must pay for a required activity, such as counseling, generally depends on who ultimately benefits. In the Sehie case, the court focused on the fact that the employer benefited since the treatments were aimed at keeping an employee the city could not afford to lose. However the court added: “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. Our holding here is narrow …”