What is “work”?
In Gibbs v. City of New York (SDNY Jan. 23, 2015), the court held that plaintiffs’ required attendance at alcohol treatment and counseling sessions was not compensable “work” within the meaning of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq.
Plaintiffs were identified by their employer (the NYPD) as having a problem with alcohol use. As a result, the NYPD required plaintiffs to attend mandatory alcohol treatment and counseling sessions, or else face disciplinary action including possible termination. One employee was in fact terminated allegedly because she refused to continue counseling.
The FLSA provides, among other things, that covered, non-exempt workers must be paid a minimum wage and overtime wages (1.5 times the regular rate) for work exceeding 40 hours a week. “[T]he basic principle that underlies the FLSA is that employees are entitled to compensation only for ‘work.'” However, the statute does not define the term “work”.
In 1944, the Supreme Court (in a case called Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590) stated what is considered to be the “key definition” of “work” under the FLSA, namely:
physical or mental exertion (whether burdensome or not) [1] controlled or required by the employer and [2] pursued necessarily and primarily for the benefit of the employer and his business.
Furthermore, the Portal-to-Portal Act of 1947 (29 U.S.C. §§ 251 et seq.) provides that, in the absence of a contrary contract or custom, an employer is not required by the FLSA to compensate an employee “for or on account of … (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities.”
Therefore, in order for an activity to be compensable “work” as a matter of law under the FLSA, it must (1) constitute “work” under Tennessee Coal and (2) survive the Portal-to-Portal Act’s two exceptions.
The court held that, first, the alcohol counseling sessions were not “work” under the Tennessee Coal definition, and second, even if they were, they would be precluded under the Portal-to-Portal Act’s second exception.
As to the application of the Tennessee Coal definition, it was undisputed that the counseling sessions were required by the NYPD. The court therefore focused its analysis on whether the counseling sessions were pursued “necessarily and primarily for the benefit of the employer.”
In holding that they were not, the court noted evidence that (1) the counseling sessions did not benefit the NYPD in any relevant way, (2) plaintiffs benefited from the counseling sessions, and (3) the NYPD did not assume primary responsibility for the cost of counseling. It also recognized “that requiring an employer to compensate an employee for time spent in such treatment would disincentivize treatment relative to other options, such as discipline and termination.
Although this resolved the case, the court went on to determine – by reference to the Supreme Court’s decision in Integrity Staffing Solutions v. Busk (2014) – that the counseling sessions “would be excluded from the definition by operation of the Portal–to–Portal Act on the basis that the sessions were neither principal activities nor activities integral and indispensable to such principal activities, but rather non-compensable postliminary activities.”
Specifically, one plaintiff’s regular tasks consisted of answering the phone, completing accident reports, and taking money orders, and the other plaintiff was charged with interacting with members of the public regarding towed cars. “None of those activities bears any relation to the consumption of alcohol or treatment to address it. As a result, the counseling sessions were neither indispensable nor integral to Plaintiffs’ principal activities.”