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February 21, 2006
Employee Must Be Paid for Time Spent at Required Counseling Sessions

A federal appeals court has ruled that an employer must pay an employee for time spent outside of regular work time at required psychological treatment sessions and traveling to and from the sessions.

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Facts. Kari Sehie was hired by the city of Aurora, Illinois, as an emergency dispatcher in 1994. Her primary duty was to field 911 calls. At the end of her shift on December 14, 2000, Sehie's supervisors instructed her to stay and work another 8-hour shift because a co-worker was sick. She protested, but was required to stay. A half-hour into the new shift, Sehie became very angry and upset because she was working another shift and abruptly left work. Between leaving work on December 14 and returning the next day, Sehie spoke with her therapist and took medication for her 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 as a result of her leaving work on December 14. The physician who performed the evaluation, Dr. Steven Stanard, said that Sehie was fit for duty, but recommended as a condition of her continued employment that she attend weekly psychotherapy for 6 months. Dr. Stanard further noted that he would reevaluate Sehie after 6 months.

Aurora adopted Dr. Stanard's recommendations and ordered Sehie to see its therapist, Dr. Maria Nucci, outside of her regularly scheduled work hours. Sehie requested to see her own therapist, whom she had frequently consulted, but Aurora refused. Between February 2001 and her resignation in June 2001, Sehie attended 16 sessions with Dr. Nucci, spending an hour at each session, and also spent 2 hours traveling back and forth by car to each session, but was not paid for that time.

Sehie 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. The district court agreed, and Aurora appealed.

Ruling. Aurora argued that the counseling sessions were not primarily for its own benefit, but that medical treatment always primarily and necessarily benefits the employee, and that the medical treatment here was mandated by Aurora did not alter this fact. Aurora also claimed that the medical treatment was necessarily and primarily for the benefit of Sehie, because it would minimize the chance that she would again abandon her job and lose her job as a result.

The court noted, however, that the counseling sessions were a mandatory condition of Sehie's continued employment. This requirement, combined with the fact that Aurora was short on telecommunications staff, created a strong inference that sessions were for Aurora's benefit. In addition, the court found it odd that Aurora would not let Sehie see her own therapist if Aurora believed that these counseling sessions were for her benefit. In fact, Aurora paid for 90 percent of the cost of the sessions with Dr. Nucci, while Sehie would most likely have paid the full cost if Aurora had let her fulfill the requirement by seeing her own therapist.

The evidence showed that the purpose of the required counseling sessions was to enable Sehie to perform her job duties and relate to co-workers more effectively and at a higher skill level by addressing personality deficiencies and problems that predated the events of December 14, 2000. It was thus reasonable for the district court to conclude that the purpose of these counseling sessions was for Aurora to help Sehie manage her emotional problems, thus ensuring that she would properly responded to emergency calls and stay on the job in a position that was short-staffed. These reasons all primarily benefitted Aurora.

Aurora also argued that DOL regulations (29 CFR 785.43) stand for the proposition that an employee who receives treatment for a work-related injury can receive compensation only if the treatment is required by the employer and it occurs during the employee's scheduled hours of work.

Sehie countered that this regulation is merely a definition of "hours worked" in one particular situation out of many, and is not, as the district court noted, an "all-encompassing regulation that defines the entire universe of what is and what is not hours worked."

The appeals court rejected Aurora's rigid reading of the regulation, noting that the regulations were not intended to specify every instance of what constitutes hours worked.

The court emphasized the very specific nature of its inquiry and stated that this ruling does not mean that every time an employer gets help for its employees, the employee must be compensated for hours worked. Sehie v. City of Aurora, No. 03 C 945, U.S. Court of Appeals for the 7th Circuit (12/27/05).

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