Employer-Required Alcohol Counseling not 'Work'

December 17, 2009 (PLANSPONSOR.com) – A federal judge has thrown out a lawsuit by a Lexington, Kentucky, police officer arguing he should have been paid for the time he spent at employer-required alcohol counseling.

U.S. District Judge Karen K. Caldwell of the U.S. District Court for the Eastern District of Kentucky ruled that plaintiff Keith Todd is not entitled to be paid under the Fair Labor Standards Act (FLSA) for the time that he spent attending and traveling to and from employer-required Alcoholics Anonymous meetings and psychiatric examinations.

The employer, Lexington Fayette Urban County Government (LFUCG), argued Todd’s alcohol rehab activities were not “work” because they satisfied a precondition of Todd’s employment that he maintain his fitness for duty.

Caldwell asserted that the suit was governed by the 2001 ruling by the 6th Circuit Court of Appeals establishing a three-part test to determine whether employee activities would constitute “work” under the FLSA. Applying the test to the facts of Todd’s case, Caldwell said Todd had to show that:

  • LFUCG required the activities;
  • they were necessarily and primarily for the benefit of LFUCG; and
  • they were an indispensable part of Todd’s primary employment activities.

Regarding the first part of the test in Brock v. City of Cincinnati, Caldwell said “Todd’s failure to attend any of these sessions would have resulted in some form of disciplinary action and may have resulted in his termination. Consequently, Todd’s attendance at the sessions was clearly required by LFUCG.”

On the second part of the Brock test, Caldwell noted in her ruling: “…no evidence has been presented that LFUCG has a shortage of police officers and that the police department needed to retain Todd’s services. As a result, the inference that the counseling sessions were for the employer’s benefit does not arise in this case.”

Finally, the court contended that the skills that Todd learned during counseling “enabled him to keep his job and ensured that his conduct did not threaten his ability to protect his own safety, the safety of fellow officers and the safety of the public….given the safety sensitive nature of Todd’s employment as a police officer, these restrictions do not appear to be unjustified and have enured primarily to his benefit, not to the benefit of LFUCG.”

Caldwell’s ruling is available here.