Must you pay an employee for mandatory alcohol treatment?

More specifically, as posed in this recent federal court decision, “when an employer requires an employee to attend alcohol counseling and treatment sessions as a condition of keeping her job, must the employer compensate the employee for the time she spends in counseling and treatment?”

The three plaintiffs, NYPD police offers, identified three aspect of counseling that they claim they were required to undertake: (1) inpatient counseling at a residential treatment facility (with respect to one plaintiff); (2) outpatient counseling during regularly-scheduled work hours; and (3) outpatient counseling after regularly scheduled work hours. All three were paid their regular wage while in counseling. However, none of these employees received overtime.

More after the jump…

Now, before I continue with this post, as you can tell, I decided to clean up around here. The idea behind the blog redesign was to make the focus the new posts, and not the other links and distracting bells and whistles. I also wanted to discourage guest blog posts because, let’s face it, I can only take so many pitches for “seven tips to hiring a great nanny.” But, I didn’t get rid of everything. If you want to explore the site, click on the three horizontal lines in the upper left and poke around a bit. Clicking on the star to the right of the three lines will uncover some prior posts that I think you’ll dig. The search function speaks for itself. And on the top right are the various ways you can connect with me on social media.

This is still a bit of a work in progress. Think of it as a new home with a few punchlist items left to complete. Like, we’re still configuring Disqus for reader comments.  And I still need to add a field for you to provide me with your bank account and routing number.

* * *

Well, getting back to the NYPD case, in determining whether the employees were entitled to overtime payment for their hours spent in counseling, not only did the court offer an emphatic no, but the court determined that the counseling sessions are not “work” and, therefore, not compensable at all. First, the counseling sessions did not benefit the NYPD in any relevant way. Second, the Plaintiffs benefited from the counseling sessions. And, third, the NYPD did not assume primary responsibility for the cost of the counseling. Moreover, as further addressed in this recent Supreme Court decision, the Portal-to-Portal Act excludes counseling sessions from the definition of “work.”
Based on this decision, if you require employees to attend alcohol treatment and counseling, the Fair Labor Standards Act does not require that you pay them.