Seventh Circuit says Therapy Time is Working Time under FLSA
When the City of Aurora directed Kari Sehie to see a therapist outside
of normal working hours, it was "suffering or permitting" her to work for its benefit, the federal appeals court ruled here in Chicago recently. Kari Sehie v. City of Aurora,
No. 04-2308. This included the time spent attending the sessions as well as traveling to and from the therapist's offices.
An emergency dispatcher with the city, Sehie was called in to work double shifts when a co-worker Phoned in sick. Sehie walked out in the middle of her shifts and reported the following day after seeing her therapist for stress. The city denied her request to attend therapy sessions with her own therapist. Having presented these facts, we emphasize that Sehie was non-exempt; this case has no relevance to exempt employee's therapy time.
Affirming Judge Kennelly's trial court ruling in favor of Sehie, the Seventh Circuit reasoned that the psychotherapy was more for the employer's benefit than for the employee's. Aurora had argued that Sehie was the primary beneficiary because receiving this help would reduce the risk of another stress-related job incident, one that
could lead to her dismissal. But Judge Williams found that the attendance at the sessions was a mandatory condition of employment, prompted in part by the city being short of manpower. And its refusal to permit her to see her own therapist hurt Aurora's case.
The court brushed aside Labor Department opinions, interpreting 29 CFR Sec. 785.43 (requiring compensation for time spent at the doctor during business hours), that denied the time was working time unless the treatment was received during normal working hours. "We are not bound by informal administrative opinions," the court observed.
But it did rely on a 1997 opinion in the Wages and Hours Manual that states: "...[W]hen 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 examination constitutes 'hours worked' and is therefore compensable under the FLSA."
Although the court stressed its opinion was fact-specific and was not intended to require employers to assume all time traveling to and from, and attending, therapy sessions, was "hours worked," this case does impose an obligation to pay when you as the employer are the prime beneficiary of the employee's therapy. If you order it, and require that the employee see a therapist of your choosing, you are deriving the benefit and you will be on the hook for overtime pay.