Tag Archives: Primary Benefit

6th Cir.: Applying “Primary Benefit” Test, Students in Work-Study Program Were Not Employees Under FLSA

Solis v. Laurelbrook Sanitarium and School, Inc.

This case was before the Sixth Circuit on the Secretary of Labor’s appeal of the decision below, holding that the student-workers at Defendant’s sanitarium were not “employees” under the FLSA, and thus, were not entitled to the child labor protections afforded by the FLSA.  Of interest here, the Sixth Circuit clarified the test to be used under circumstances where students perform work as part of a work-study program, in which they are not compensated for such work monetarily.  After surveying the applicable case law, the DOL’s regulations and its interpretations of same, the court held that the applicable test was the “primary benefit” test.  In other words, the issue of whether such student-workers are covered by the FLSA or not turns on whether the “employer” or they themselves derive the “primary benefit” of the work performed.  Here, reviewing the specific facts of the case, the Sixth Circuit held that the trial court had properly concluded that the student-workers were non-employees, properly excluded from the coverage of the FLSA.

Describing the general factual background, the court explained:

“In conformity with its beliefs, Laurelbrook operates a boarding school for students in grades nine through twelve, an elementary school for children of staff members, and a 50–bed intermediate-care nursing home that assists in the students’ practical training (the Sanitarium). The school has been approved and accredited by the Tennessee Department of Education since the 1970s. The State of Tennessee accredits certain private schools through independent authorized accrediting agencies. The E.A. Sutherland Education Association (EASEA) is one such agency, whose purpose is to consider and adjudicate requests for accreditation from self-supporting (as opposed to denominational) schools, like Laurelbrook, which are operated by members of the Seventh–Day Adventist Church. Laurelbrook is currently accredited through EASEA.”

After surveying the applicable law and deeming the “primary benefit” test to be the proper test for determining whether the student-workers were employees, the court reasoned the student-workers here were not “employees” under the FLSA:

“In applying the primary benefit test, the district court recognized that students’ activities at Laurelbrook contribute to Laurelbrook’s maintenance, thereby benefitting Laurelbrook’s operations. Laurelbrook receives payment for services it provides to patients at the Sanitarium; some of these services are performed by students at no cost to Laurelbrook.  Hours worked by students in the Sanitarium also contribute to the Sanitarium’s satisfaction of its licensing requirements. Laurelbrook sells flowers and produce grown at Laurelbrook with student help. The proceeds from these sales go directly to Laurelbrook’s operations. As part of a course on collision repair, students assist in repairing cars for the public. Beneficiaries of these services pay Laurelbrook directly and the money is recycled back into school programs. Laurelbrook also earns revenue from the sale of wood pallets the students help build.

The value of these benefits to Laurelbrook, however, is offset in various ways. The district court found that Laurelbrook students do not displace compensated workers, and instructors must spend extra time supervising the students at the expense of performing productive work. Specifically, the court found that Laurelbrook is sufficiently staffed such that if the students did not perform work at the Sanitarium, the staff members could continue to provide the same services there without interruption. And while not specifically mentioned by the district court in its findings, there was evidence at trial that the same was also true of the work performed by students outside the Sanitarium. There was also testimony that, were it not for the instructors’ supervisory responsibilities, instructors would be able to complete more productive tasks in less time. Moreover, as the district court found, Laurelbrook is not in competition with other institutions for labor, so Laurelbrook does not enjoy an unfair advantage over other institutions by reason of work performed by its students…

Students do not receive wages for duties they perform. They are not entitled to a job with Laurelbrook upon graduation, and are expected to move on after graduation.”

On the other side of the ledger are the tangible and intangible benefits that accrue to the students. The district court found that Laurelbrook provides it students with significant tangible benefits. Students are provided with hands-on training comparable to training provided in public school vocational courses, allowing them to be competitive in various vocations upon graduation. Students learn to operate tools normally used in the trades they are learning, while being supervised by instructors. Students engage in courses of study that have been considered and approved of by the state accrediting agency. In short, the educational aspect of the instruction at Laurelbrook is sound, in contrast to the training program at issue in Baptist Hospital, where the supervision was inadequate, the exposure to various aspects of the trade limited, and the overall value to the students nil. None of these educational shortcomings is present here. Indeed, the Tennessee Department of Education, through EASEA, has determined that Laurelbrook’s vocational program provides benefits to the students sufficient to warrant accreditation.

Significant, too, are the intangible benefits students receive at Laurelbrook. As the district court found, receiving a well-rounded education—one that includes hands-on, practical training—is a tenet of the Seventh–Day Adventist Church. Laurelbrook provides students with the opportunity to obtain such an education in an environment consistent with their beliefs. The district court found that the vocational training portion of the education teaches students about responsibility and the dignity of manual labor. Thought not mentioned in the district court’s opinion, there is ample evidentiary support for these findings. Parents testified to the benefits their children received from the program, stating that the students learn the importance of working hard and seeing a task through to completion. Some parents testified that their children have become more responsible and have taken on leadership roles since participating in Laurelbrook’s program. Service in the Sanitarium engenders sensitivity and respect for the elderly and infirm. Laurelbrook alumni testified that the leadership skills and work ethic developed at Laurelbrook have proved highly valuable in their future endeavors. Employers also testified that Laurelbrook alumni have a strong work ethic, leadership skills, and other practical skills that graduates of other vocational programs lack.

The Secretary discounts the value of these intangible benefits, but we agree with the district court that they are of significant value. Courts that have addressed the value of such benefits have likewise concluded that they are significant enough to tip the scale of primary benefit in the students’ favor even where the school receives tangible benefits from the students’ activities. See, e.g., Blair, 420 F.3d at 829; Woods, 400 F.Supp.2d at 1166; Bobilin, 403 F.Supp. at 1108. The overall value of broad educational benefits should not be discounted simply because they are intangible.

After considering all of the evidence, the district court found that there is benefit to Laurelbrook’s operations from the students’ activities, but the primary benefit of the program runs to the students. We find no error in the district court’s application of the primary benefit test.”

Click Solis v. Laurelbrook Sanitarium & School to read the entire opinion.

Leave a comment

Filed under Coverage, Minimum Wage, Training Time

E.D.Tenn.: K-9 Officer’s Time Spent Training/Caring For Narcotics Detection Dog Compensable

Lewallen v. Scott County, Tennessee

This case was before the Court, following a bench trial.  The issue before the Court revolved around whether time spent by a K-9 officer training and caring for a narcotics detection dog assigned to him was compensable under the FLSA.  For the reasons discussed below, the Court held that such time was indeed compensable and awarded Plaintiff damages in accordance with his off-duty time spent performing these duties.

The Court recited the following facts as relevant to the inquiry regarding the compensability of the hours at issue:

Kristofer Lewallen began his duties as a K-9 officer on July 1, 2006, when Sheriff Jim Carson ordered him to pick up a black Labrador dog named “J.J.” Sheriff Carson told Lewallen to begin working with the dog and eventually J.J. would be trained as a narcotics detection dog. J.J. lived with Lewallen and Lewallen fed, trained and cared for him. These activities with J.J. were “off the clock,” that is, they were performed in addition to Lewallen’s regularly scheduled work.

In September 2006, Sheriff Anthony Lay took office, and Lewallen’s immediate supervisor became Chief Deputy Bobby Ellis. Lewallen continued to feed, train and care for J.J. under Sheriff Lay. In October 2006, J.J. received training in narcotics detection and was certified as a narcotics detection dog. In addition to the previous care, Lewallen now needed to perform maintenance training with J.J. to keep him certified. Lewallen was not compensated for any of the time he cared for and trained J.J., although Scott County paid for food, veterinary care, and other necessary items for the dog.

Lewallen was trained as a K-9 officer in January 2007. At that training Lewallen learned for the first time that K-9 officers should receive extra pay for the time they spent with their dogs off the clock. Lewallen researched the requirements and submitted the information to Chief Ellis, who gave it to the Scott County finance director. The information included a statement that the Department of Labor requires that the time spent with police dogs is compensable time and, if the hours spent with the dog exceed the 40-hour work week, time and one-half compensation must be paid.

In March 2007, Sheriff Lay called a mandatory meeting of the Sheriff’s Department employees where he announced the suspension of the County K-9 program. Nevertheless, Lewallen still had to care for and train J.J. since he still had possession of the dog. During this time, Lewallen kept training logs for J.J., which were given to Chief Ellis. The training logs showed the amount of time Lewallen was training J.J. during his off-duty hours-45 minutes to six hours a day on his days off and after his shifts.

Sheriff Lay allowed the K-9 officers to begin working with their dogs again in September 2007, and the Scott County K-9 officers were scheduled and sent for training and certification at that time. Lewallen asked Chief Ellis about compensation for his off-duty care and training of his dog, and Ellis said that the Sheriff knew about his request for overtime compensation. Other Scott County K-9 officers also asked Chief Ellis about getting paid for their overtime. Lewallen prepared a proposed schedule that gave each K-9 officer two hours of paid time per scheduled work day as compensation for the care and training of the dogs, and he submitted the plan to Chief Ellis. He never received any response to his proposal…

Lewallen claims one and one-half hours per day of overtime related to his responsibilities of caring for and training his narcotics dog for 874 days. Specifically, on a daily basis Lewallen provided food and water for his dog; brushed the dog and its teeth; administered arthritis medication; and cleaned the kennel area. In addition, the training log examples submitted as evidence show that he often trained his dog for several hours after his shift or on his days off. While Lewallen admits that one and one half hours is an estimate, Scott County has not produced any proof that this estimate is too high or unreasonable.”

Holding that such time was compensable the Court said:

“The first issue to be decided is whether the off-duty time Lewallen spent caring for and training his narcotics dog qualifies as work. The Supreme Court has defined “work” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944). This definition includes work performed off-duty. Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (holding that employees must be compensated for activities performed for the employer before or after a regular work shift if the activities are an “integral and indispensable” part of the employees’ principal activities). The definition even applies when the work is not requested but is “suffered or permitted.” 29 C.F.R. § 785.11. “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” 29 C.F.R. § 785.12.

To determine whether the care and training of the narcotics dog was compensable work, there are three questions to be considered: (1) Did Scott County require or suffer Lewallen to care and train J.J.? (2) Was the care and training of the dog necessarily and primarily for the benefit of the County? and (3) Was the off-duty work an integral and indispensable part of Lewallen’s principal activities? Brock v. City of Cincinnati, 236 F.3d 793, 801 (6th Cir.2001). The court concludes that the answer to all three questions is “yes.”

Sheriff Carson ordered Lewallen to pick up a black Labrador dog named J.J. and to begin working with the dog in the hope that J.J. eventually would be trained as a narcotics detection dog. J.J. was to live with and to be taken care of by Lewallen, but he was not Lewallen’s dog as evidenced by the fact that the Sheriff had the dog picked up from Lewallen when he was demoted. Sheriff Carson wanted Scott County to have a certified narcotics dog and K-9 officer, as did Sheriff Lay, and the sheriffs were certainly aware that keeping a dog at home would require taking care of it beyond Lewallen’s scheduled shifts. Even if Sheriffs Carson and Lay were not aware of the exact amount of time needed to care for and train a narcotics dog, they required Lewallen to perform these activities with J.J. Sheriff Lay was informed that Lewallen thought he should get paid for taking care of and training J.J. when he was off duty, but he did nothing to curtail Lewallen’s time spent with the dog, other than suspending the K-9 program for a few months. Sheriff Lay scheduled the training of J.J. and Lewallen in narcotics detection, and Scott County paid for J.J.’s food, veterinary bills, and other necessities. As the Sixth Circuit held in Brock, Scott County “required the officers to take the canines home with them, look after them at all times, keep them well-nourished and in good health, and have them ready for recall to active service at a moment’s notice.” Brock, 236 F.3d at 804

The court finds that the care and training of J.J. was for the benefit of Scott County, and an integral and indispensable part of the County’s K’9 program. After he was certified, Lewallen’s principal activity for the Sheriff’s Department was working as a K-9 officer. Thus, the time Lewallen spent caring for and training his canine is compensable work.”

Not discussed here, the Court rejected Defendant’s assertions that such time was properly compensated by $1,000.00 per year and/or “comp time.”

To read the entire Memorandum Opinion, click here.

1 Comment

Filed under CompTime, Work Time

D.Md.: Training Time Outside Of Regular Work Hours Not Compensable, Because It Was Primarily For The Benefit Of The Employees Not The Employer

Carter v. Mayor & City Council of Baltimore City

Before the Court was Defendants’ Motion for Summary Judgment.  This was the second such Motion, because the Court had denied the prior application with leave to further establish the factual record.  Plaintiffs claimed that they were entitled to be paid for certain time spent training in Defendants’ CRT Apprentice program outside of their regular workweek.  The Court disagreed, granting Defendants’ Motion.  As discussed below, the Court reasoned that since the primary benefit of the training was to the Plaintiffs, such time spent training was not compensable under the FLSA or Portal-to-Portal Act.

Discussing the facts pertinent to its inquiry the Court explained:

“Plaintiffs are current or former apprentices in a Baltimore City Fire Department (BCFD) three-year Firefighter/Paramedic Apprenticeship Program. Plaintiffs allege that as part of their apprenticeship they were required to attend class and perform on-the-job practical training on an ambulance and in the hospital without compensation in violation of the FLSA.

It is undisputed that one of the duties of a Firefighter/Paramedic is to provide emergency medical care, including Advanced Life Support. In order to provide Advanced Life Support, Maryland state law requires licensure as a Cardiac Rescue Technician (CRT). Md.Code Regs. 30.01.01.20. State law designates the State Emergency Medical Services Board (EMS Board) to approve CRT courses, conduct examinations, and issue CRT licenses. Md.Code Ann., Educ. § 13-516(a)(2) [a portion of the facts is excluded here]…

The Fire Department required remedial training for apprentices when they failed the required national registry EMT test or any of the exams during the CRT-I course. In addition, if students failed the National Registry exam three times, the National Registry required the students to take a 48 hour review before it would allow them to re-take the exam.

The Maryland Institute for Emergency Medical Services Systems issued regulations governing the content of ALS education programs. Md.Code Regs. 30.04.02.01 et seq. In addition to classroom training, ALS students must also complete a supervised clinical experience, which includes the practice of skills within clinical education facilities, and a supervised field internship, which includes the practice of skills while functioning in a prehospital ALS environment. Id. 30.04.02.05. During the clinical and field training, the MIEMSS regulations require that the student is supervised by clinical and field preceptors. Id. 30.04.02.06. In the field portion of the training, the ratio of students to preceptors must be one to one. Id. 30.04.02.06(F)(2).

Upon entering the fire academy, the apprentices signed an Apprenticeship Agreement in which they agreed to the terms of the Apprenticeship Standards filed with the Maryland Apprenticeship and Training Council. The Standards include a requirement that apprentices will complete a minimum of 144 hours per year of related instruction and that these hours will not be considered as hours worked when given outside regular working hours. In addition to the CRT-I course, apprentices were required to undergo enhanced training, including courses in pump operations, aerial operations, hazmat tech, arson awareness/sprinkler, and rescue technician.

During the second portion of the apprentices’ training, they worked an eight day cycle, with 4 days on and 4 days off. Training to obtain their CRT licensure was sometimes scheduled on the apprentices’ days off. Apprentices were not compensated during the off-duty training times. Plaintiffs contend that they should have been compensated for this off-duty training time under the FLSA.”

Discussing the relevant law and concluding that Plaintiffs’ after-hours training was not compensable under the FLSA, the Court stated:

“Plaintiffs allege that the City violated this provision by refusing to pay them overtime for the hours spent in training outside their regular workweek.

Cases analyzing whether training mandated by employers or potential employers should be compensable as hours worked include cases in which the potential employer requires the completion of training before an individual may be hired and cases in which the individual is an apprentice or already an employee and required to complete training as part of the apprenticeship or as an agreed upon condition to hiring. The seminal cases relating to training and the FLSA are the companion cases, Walling v. Portland Terminal Co., 330 U.S. 148 (1947) and Walling v. Nashville, Chattanooga and St. Louis Ry., 330 U.S. 158 (1947). In Portland Terminal, the defendant railroad had required the completion of a course of practical training before individuals could be hired as prospective yard brakemen. 330 U.S. at 149. The course involved a progressive increase in the trainees’ ability to act as a brakeman beginning with observing routine activities through gradually conducting the actual work of a brakeman under close scrutiny. Id. The Supreme Court noted that the activities of the trainee did not displace any of the regular employees, who were required to supervise any actual work done by the trainees, and did not expedite the company business, but may at times have impeded it. Id. at 149-50. Once certified as competent, the individuals who completed the training comprised a pool of qualified workmen available to the railroad when needed. Id. at 150. The Supreme Court focused on whether the trainees were to be considered employees and thus protected by the FLSA. Id. The FLSA defines employ as “to suffer or permit to work.” Id. at 152; 29 U.S.C. § 203(g). Despite the broad definition, the Supreme Court held that it could not “be interpreted so as to make a person whose work serves only his own interest an employee of another person who gives him aid and instruction.” Portland Terminal, 330 U.S. at 152. The Court compared the training at issue to courses in railroading in a public or private vocational school, in which “it could not be reasonably suggested that [the students] were employees of the railroad merely because the school’s graduates would constitute a labor pool for the railroad.” Id. at 152-53. Thus, the Court held that when the railroads received no “immediate advantage” from the work done by the trainees, the trainees were not employees under the FLSA. Id. at 153.

In analyzing Portland Terminal, the Fourth Circuit has concluded that the general test used to determine if an employee is entitled to the protections of the Act is “whether the employee or the employer is the primary beneficiary of the trainees’ labor.” McLaughlin v. Ensley, 877 F.2d 1207, 1209 (4th Cir.1989). In McLaughlin, the defendant owned a snack foods distribution business in which he required new hires to spend five days travelling an ordinary route with an experienced routeman as training before they were hired. 877 F.2d at 1208. The trainees loaded and unloaded the delivery truck, restocked stores with the defendants products, were given instruction on how to drive the trucks, were introduced to retailers, were taught basic snack food vending maintenance, and occasionally helped in preparing orders of goods with financial exchanges. Id. The court found that, unlike in Portland Terminal, the prospective employees were simply helping to service a route, and the instruction they received did not rise to the level that one would receive in a general, vocational course in outside salesmanship. Id. at 1210. Instead, the court found that the trainees were taught only simple, specific job functions related to the defendant’s business. Id. For those reasons, the court concluded that the trainees were entitled to be considered covered employees under the FLSA. Id. Compare Reich v. Parker Fire Protection District, 992 F.2d 1023 (10th Cir.1993) (holding that firefighter trainees were not employees because they obtained training comparable to a vocational school and the defendant was not immediately benefited by the trainees’ activities as their training activities were supervised and they did not assume the duties of career firefighters; the benefit to the defendant from the plaintiffs’ supervised training activities was de minimis ).

Where trainees are already employees, the Courts look also to the Portal-to-Portal Act, which provides that an employer need not pay an employee for activities that are “preliminary or postliminary” to the principal activity or activities the employee is employed to perform. 29 U.S.C. § 254(a)(2). The Supreme Court has interpreted the mandate of the Portal-to-Portal Act to mean “that activities performed either before or after the regular work shift, on or off the production line, are compensable … if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256 (1956).

The most oft-cited case applying the “preliminary or postliminary” test to training activities is Ballou v. General Electric Co. 433 F.2d 109 (1st Cir.1970). In Ballou, the First Circuit held that the classroom training required of the defendant’s apprentices taking place outside of working hours was neither integral nor indispensable to the apprentices’ principal activity, which was the work that took place during their regular 40 hour work-training week. Id. at 112. The court looked to Portland Terminal and found that if the defendant had not employed the appellants as workers, but provided only training programs that they were required to complete successfully before they could be employed as journeymen, the apprentices would be entitled to no compensation. Id. Thus, the court concluded that “the employer’s decision to hire its employees before the completion of training did not obligate it to compensate them for the time spent in their status as students after their hiring.” Bienkowski v. Northeastern Univ., 285 F.3d 138, 141 (1st Cir.2002) (citing Ballou, 433 F.2d at 112).Accord Chao v. Tradesman Int’l, Inc., 310 F.3d 904, 910 (6th Cir.2002) (“Therefore, we agree with the First Circuit that the defendant employer should not be made liable for overtime pay for time its employees spend as students, rather than as workers…. We do not see why the employer should be penalized for allowing a potential employee to begin earning income while striving to meet certain prerequisites for the job when the employer could just as easily withhold employment until successful completion of all the job requirements.”).

In Bienkowski, the First Circuit applied its analysis in Ballou to facts similar to the facts found here. 285 F.3d at 141. In Bienkowski, the defendant hired the plaintiffs as probationary police officers with a requirement that they receive and retain certification as Massachusetts-registered EMTs within one year of their appointment. Id. at 139. At the time of hire, the plaintiffs signed a letter acknowledging the requirement. Id. The training, as required pursuant to Massachusetts statutes, regulations, and Department of Public Health standards, required approximately 110 hours of classroom work, as well as 10 hours of in-hospital evaluation time, practical exams, and written exams. Id. Although the plaintiffs could have taken the EMT courses at various locations throughout Massachusetts, they chose to take the course at Northeastern, where they were entitled to tuition reimbursement. Id. For the most part, the course requirements took place outside of the plaintiffs’ working hours. Id. at 140. Prior to receiving their certification, the plaintiffs were prohibited from performing EMT work, but following their certification, they regularly used their skills on the job. Id. The Court held that it would not hold the defendant “liable for overtime pay for time its employees spend as students, rather than as workers, simply because [the defendant] decided to hire its employees on a probationary basis until they complete the training required to hold the job on a permanent basis.” Id. at 141.

Defendants have articulated and Plaintiffs have not disagreed that the classes and on-the-job training required of the apprentices can be broken down into four categories: 1) initial classroom training to obtain CRT licensure; 2) classroom enhanced training; 3) clinical training with an ambulance medic team and in the hospital to obtain CRT licensure; and 4) mandatory repeat classroom training to obtain CRT licensure when a student has failed any of the required exams. Under either the “primary beneficiary” test of McLaughlin or the “integral and indispensable part of the principal activities” test of Steiner, the hours spent in all four categories of training are not compensable as hours worked under the FLSA.

All of the classroom and practical training required to obtain the CRT license, the classroom enhanced training, and the repeat classroom training are no different than that found in Portland Terminal, Ballou, and Bienkowski. Plaintiffs are apprentices in an apprenticeship program approved by the Department of Labor and as part of that program were required to take the CRT Training, which required both classroom and clinical training. As the CRT license was required in order for Plaintiffs to conduct their duties as firefighters/paramedics, the City could have required the Plaintiffs to obtain the license before hiring them. In fact, similar training is provided at Baltimore City Community College and Community College of Baltimore County. Instead the city allowed Plaintiffs to obtain the license while they were concurrently employed by the city, and funded the training. Although the City ultimately benefitted from Plaintiffs obtaining the CRT license in that it then had a pool of employees certified to conduct ALS, Plaintiffs obtained a license fully transferrable to their employment with any other employer that required the ability to provide Advanced Life Support. Thus, as in Portland Terminal and unlike in McLaughlin, Plaintiffs were the primary beneficiaries of the training. Moreover, as Plaintiffs were not able to perform any of the ALS duties until they obtained their license, as in Bienkowski the training was not an integral and indispensable part of their paid work duties during the period of their training.

This Court’s holding is supported by Department of labor regulations interpreting the FLSA that exclude from the computation of “hours worked” the time spent in certain kinds of training.  One such regulation is found at 29 C.F.R. § 553.226(b).

(b) While time spent in attending training required by an employer is normally considered compensable hours of work, following are situations where time spent by employees of State and local governments in required training is considered to be noncompensable:

(1) Attendance outside of regular working hours at specialized or follow-up training, which is required by law for certification of public and private sector employees within a particular governmental jurisdiction (e.g., certification of public and private emergency rescue workers), does not constitute compensable hours of work for public employees within that jurisdiction and subordinate jurisdictions.

(2) Attendance outside of regular working hours at specialized or follow-up training, which is required for certification of employees of a governmental jurisdiction by law of a higher level of government (e.g., where a State or county law imposes a training obligation on city employees), does not constitute compensable hours of work.

(3) Time spent in the training described in paragraphs (b)(1) or (2) of this section is not compensable, even if all or part of the costs of the training is borne by the employer.

A 1999 Department of Labor Opinion letter applies this regulation to facts identical to those found here.

Q.1. As a condition of employment, firefighters for County A must have current EMT (emergency medical training) certification. Although this certification is granted through the state, the state does not require the fire fighters have the certification. However, since City A requires it, the training is not “voluntary.” Under these circumstances, must the EMT training that is required to maintain this certification be counted as hours worked if the training takes place during non-working hours?

A.1. No. While time spent in attending training required by an employer is normally considered compensable hours of work, attendance outside of regular working hours at specialized or follow-up training which is required by law for certification of employees of a governmental jurisdiction, does not constitute hours of work under the FLSA. See Section 553.226 of Regulations, 29 CFR Part 553.  Sept. 30, 1999, Dept. of Labor Op. Letter, 1999 WL 1788163.

In addition, the Department of Labor has issued a regulation as to apprenticeship training.

[T]ime spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if…. (b) such time does not involve productive work or the performance of the apprentice’s regular duties. If the above criteria are met the time spent in such related instruction shall not be counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that it is hours worked.  29 C.F.R. § 785.32.

Plaintiffs do not contest that the initial CRT training and the enhanced training are not compensable under these regulations. They argue, however, that although the clinical training is a required component of the CRT-I course, it was compensable time because it was productive work and constituted performance of their regular duties. The undisputed evidence shows that a regular medic unit is staffed by two individuals, which could be two ALS providers or an ALS provider and a BLS provider. When Plaintiffs were assigned to a medic unit as part of their training, there was always an ALS provider and another BLS provider; the trainee would then be a third person on the team. Plaintiffs state in their opposition that “[i]n the experience of many Plaintiffs, under the guise of ‘training,’ only one person, the [ALS] preceptor-was paid. Therefore, a paid position on the medic unit was eliminated during the training, as the Defendants filled it with two unpaid apprentices.” Opp. at 8.

Contrary to Plaintiffs’ statements in their opposition, however, neither of the provided affidavits establishes that unpaid trainees replaced a paid BLS provider. Moreover, they have not established that any benefit the City may have received from the trainee’s presence is anything more than de minimis or that it outweighed the benefit to the trainee in completing a required component of the CRT training. One affiant testified that the other BLS provider was paid and drove the ambulance while he, as the trainee, sat in the back of the ambulance. Stoakley Aff. ¶ 4. Notably, the second affiant said nothing regarding whether the other BLS provider was paid and said nothing about whether he ever drove the ambulance while he was on a training run. Bonovich Aff. ¶ 4. Thus, Plaintiffs have provided no reason to believe that when they were conducting training runs they were not able to work with the ALS provider in a training capacity for the entire period.

Similarly, the time spent by the trainees in the hospital was also a required component of the CRT training. Plaintiffs’ affidavits confirm that all of the Plaintiffs’ activities in the hospital were supervised. They have not shown, however, that their activities were part of their regular duties or any more productive than the supervised work done by trainees in Portland Terminal. Thus, the clinical training does not constitute compensable hours worked under the FLSA and the Portal-to-Portal Act.

Plaintiffs also argue that the duplicative classroom training, required when Plaintiffs did not pass certain examinations required for the EMT-I certification, is compensable as hours worked because it was neither a part of the approved apprenticeship program nor a legal requirement. While the apprentice standards may have simply required the CRT-I course, it is logical to conclude that the apprentices were expected to successfully complete the course and obtain their CRT license. If an apprentice fails the course and must repeat it in order to satisfy the requirements to obtain the CRT license, it is hard to imagine how this is any different than the initial requirement to attend the course. Moreover, it seems perverse logic to say that the initial training is not compensable, but if an apprentice fails the training, it then becomes compensable. Finally, the Court sees no immediate benefit to the Defendants from Plaintiffs taking remedial courses since it delayed the time that Plaintiffs could conduct ALS duties. Thus, the Court sees no difference in the initial requirement to attend the CRT course and the requirement to take duplicative training when the student fails the required exams.”

Having determined that the training time at issue was not compensable, the Court granted Defendants’ Motion for Summary Judgment.

Leave a comment

Filed under Training Time, Work Time

E.D.Ky.: Time Spent Attending AA Meetings Not Compensable; Although Required By Employer, Attendance At Meetings Not Primarily For Employer’s Benefit

Todd v. Lexington Fayette Urban County Government

This case was before the Court on Defendant’s Motion for Summary Judgment.  The Defendant, who required Plaintiff to attend Alcoholic’s Anonymous (AA) meetings during off-duty time claimed that time spent attending such meetings was not compensable.  Agreeing with Defendant and granting it summary judgment, the Court held that although required as a condition of continued employment, because the meetings primarily benefited Plaintiff, the employee, rather than Defendant, his employer, such time was not compensable under the FLSA or Kentucky wage and hour laws.

The Court found the following facts relevant to its determination:

“Todd is an employee of the LFUCG and works as a police officer for its Division of Police (“the police department”). (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 3). On March 1, 2006, while Todd was off-duty and at home, he consumed alcohol and an unknown quantity of Ambien sleeping pills and blacked out. (Id. at 5). Sometime thereafter, Todd’s wife came home, discovered his condition and called 911. (Id. at 5-6). The LFUCG police department responded and an ambulance transported Todd to the University of Kentucky Hospital where he stayed for five days. (Id.). As a result of the combined effects of the alcohol and sleeping pills, Todd has no recollection of the events leading up to his hospitalization. (Id.).

While hospitalized, Todd met with Police Chaplain Welch to discuss, among other things, his need for time off to receive alcohol treatment. (Id.) After his discharge from the hospital, Todd met with his supervisors and requested time off to attend a private alcohol treatment program. (Id. at 7). This request was granted and Todd enrolled a treatment program at the Ridge Behavioral Systems facility in Lexington, Kentucky. (Id. at 9). He successfully completed the sixteen day treatment program on March 30, 2006 and was “released to return to work with no restrictions.” (Rec.18, Attach.2). During the interim, Todd was removed from his duties as a patrol officer and was reassigned to the Bureau of Administrative Services. (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 10).

As a result of the hospitalization, LFUCG required Todd to undergo a “fit for duty” evaluation which was conducted by Dr. Robert Elliott, a psychiatrist. (Id. at 11-12). Upon completing the evaluation, Dr. Elliott determined that Todd was fit to return to full time duty without restrictions subject to the following conditions: (1) that Todd attend three Alcoholics Anonymous meetings (“AA meetings”) per week and provide evidence of his attendance every month by having a sponsor sign a monthly report; (2) that Todd should submit to random urine tests for drugs and alcohol twice per month for the first three months upon returning to full time duty and monthly tests thereafter if he was doing well; (3) that Todd should abstain from consuming any alcohol including over the counter medications containing alcohol; (4) that Todd was to continue being monitored by a board certified psychiatrist; and (5) that Todd should consult with his physician and psychiatrist about getting off the prescription drugs that he was taking. (Rec.18, Attach.1, p. 6-7).

After the “fit for duty” evaluation was complete, Todd met with his supervisors and representatives from LFUCG’s Human Resources Office to discuss Dr. Elliott’s findings and his future with the police department. (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 20-21). During the meeting, Michael Allen, the Director of Human Resources discussed each of Dr. Elliott’s recommendations with Todd and asked whether he agreed to abide by them. (Rec. 18, Attach. 5, Letter from Kevin Sutton). Todd agreed to follow Dr. Elliott’s recommendations and understood that “his continued employment as an officer with the … [LFUCG] Division of Police … [was] contingent upon the adherence to these recommendations for the duration of his career with this government.” (Rec. 18, Attach. 4, LFUCG letter). Todd then returned to his full time duties with the police department. (Id.). However, it was understood that “any violation of these [Dr. Elliott’s] recommendations would result in his termination through the Alcohol and Drug Policy.” (Rec. 17, Deposition of Ronnie Bastin, Ex. 1, p. 14); (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 22-23).

Although the record is not entirely clear, it appears that Todd was required to comply with the majority of Dr. Elliott’s recommendations outside of his normal forty hour work week and at his own expense. Police Chief Bastin testified that Todd was not permitted to attend the required AA meetings during his regular working hours. (Rec. 17, Deposition of Ronnie Bastin, p. 6). However, he testified that Todd probably would have been permitted to attend the required psychiatric appointments during regular working hours. (Id. at 7). Todd also appears to have borne the costs associated with his psychiatric evaluations. (Rec. 33, Attach. 1, Deposition of Keith Todd, p. 33-34).”

Finding the time in dispute not to be compensable, the Court stated:

“Todd argues that the FLSA and Kentucky law require LFUCG to compensate him for time spent outside his normal working hours attending AA meetings and psychiatric evaluations. He claims that they were required as a condition of his employment.

Section 207 of the FLSA states that: Except as otherwise provided in this section, no employer shall employ any of his employees … for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a)(1). The FLSA defines the term “employ” to include “to suffer or permit to work” but does not define what “work” is. 29 U.S.C. § 203(g). The Supreme Court initially interpreted the FLSA in Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, and explained that its provisions were “necessarily indicative of a Congressional intention to guarantee either regular or overtime compensation for all actual work or employment.”   Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 88 L.Ed. 949, 64 S. Ct 698 (1944). The Court defined “work” to mean “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Muscoda, 321 U.S. at 598. The Supreme Court has since indicated that even work performed while off duty can qualify as work and may entitle an employee to compensation under the FLSA. See Steiner v. Mitchell, 350 U.S. 247, 256, 100 L.Ed. 267, 76 S.Ct. 330 (1944)(holding that employees must be compensated for activities performed either before or after the regular work shift if those activities are an integral and indispensable part of the principal activities for which covered employees are employed); see Brock v. City of Cincinnati, 236 F.3d 793, 801 (6th Cir.2001). In Chao v. Tradesmen International, Inc., the Sixth Circuit summarized an employer’s duties under the FLSA and clarified that “the Portal to Portal Act, which amends the FLSA, modified this judicial construction of hours worked to exclude from compensation activities that are ‘preliminary to or postliminary to said principal activity or activities.’ “ Chao v. Tradesmen Int’l, Inc., 310 F.3d 904, 907 (6th Cir.2002)(citing 29 U.S.C. § 254(a)(2); Aiken v. City of Memphis, 190 F.3d 753, 758 (6th Cir.1999)).

The state statutes at issue in this case are found in Kentucky Revised Statutes (“KRS”) Chapter 337, which is Kentucky’s analogue to the FLSA. Specifically, KRS section 337.285 provides that:

No employer shall employ any of his employees for a work week longer than forty (40) hours, unless such employee receives compensation for his employment in excess of forty (40) hours in a work week at a rate of not less than one and one-half (1-1/2) times the hourly rate at which he is employed.K.R.S. § 337.285(1). Neither party has presented any Kentucky cases applying this statute to the present issue-whether an employee is entitled to compensation for off-duty attendance at AA meetings or psychiatric evaluations. In the absence of such authority, Kentucky courts have looked to federal cases interpreting the FLSA for guidance. See, e.g., City of Louisville, Div. of Fire v. Fire Serv. Managers Ass’n, 212 S.W.3d 89, 95 (Ky.2006)(“In the absence of any Kentucky cases on point, we next look to federal cases interpreting the FLSA.”). Accordingly, the Court will apply federal law principals to both the state and federal law claims.

The United States Court of Appeals for the Sixth Circuit has adopted a three step approach to aid courts in determining whether an activity constitutes “work” for purposes of the FLSA. Thus, to determine whether Todd’s attendance at AA meetings and psychiatric evaluations constitutes “work” under the FLSA, we must consider whether: (1) LFUCG required these activities; (2) whether they were necessarily and primarily for the benefit of LFUCG; and (3) whether they were an indispensable part of Todd’s primary employment activities. See Brock, 236 F.3d at 801-04.

A. Whether Todd’s off-duty activities were required by LFUCG?

LFUCG claims that attending these sessions was not a term or condition of Todd’s employment, but was necessary for him to remain fit for duty which is a pre-condition and continuing condition of his employment. In support of its position, LFUCG draws the Court’s attention to Dade County v. Alvarez, in which the Eleventh Circuit determined that off-duty physical fitness training by police officers was not compensable “work” under the FLSA. Dade County v. Alvarez, 124 F.3d 1380 (11th Cir.1997). However, the facts of Alvarez are distinguishable from this case. In Alvarez, the Eleventh Circuit emphasized that while the officers were instructed to do whatever was necessary to maintain their physical fitness levels, they were not directed to undertake any specific off-duty work out routines or training. Id. at 1383. They were simply required to remain in good enough shape to perform their job functions and pass a physical fitness exam. Id. In remaining physically fit, they had complete discretion in deciding on the method, location and amount of off-duty training necessary. Id. In addition, it is significant for purposes of this case that in Alvarez there was no suggestion that the police officers’ employment would have been adversely affected if they failed to engage in off-duty work outs as long as they maintained an adequate level of physical fitness. Id. at 1385.

LFUCG claims that as in Alvarez, Todd’s condition of continuing employment was not that he attend the AA and psychiatric sessions, but that he remain fit for duty. This assertion is not supported by the evidence in the record. While Todd was permitted to select a psychiatrist and choose which AA meetings to attend, unlike Alvarez, he was required to attend a specific number of counseling and AA sessions. Todd was not permitted to exercise any significant discretion in maintaining his sobriety. In addition, he was required to provide documentation to prove his attendance at the AA meetings and psychiatric evaluations. Finally, and most importantly, unlike Alvarez, there is clear evidence in the record that Todd’s employment would have been adversely affected if he failed to attend any of the required sessions. In fact, Leslie Jarvis of the Division of Human Resources wrote a letter to then Chief of Police Anthany Beatty indicating that Todd’s continued employment was contingent on adhering to the recommendations for the remainder of his career.

In this case, it was not enough for Todd to maintain his sobriety and thereby remain fit for duty. 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.

B. Whether Todd’s attendance at AA meetings and psychiatric evaluations was necessarily and primarily for the benefit of LFUCG?

LFUCG argues that these sessions were not primarily for its benefit because Todd acknowledges that treatment has improved his life by allowing him to achieve and maintain his sobriety. In addition, LFUCG relies on statements by Police Chief Bastin that LFUCG’s goal was to allow Todd to get things straightened up, not only so that he could be a successful employee but also for the sake of his home life. Finally, LFUCG claims that because Todd was able to select his own psychiatrist and the specific AA meetings that best addressed his circumstances, the sessions were primarily for his benefit.

Todd counters that the sessions were primarily for LFUCG’s benefit because his attendance was required and ensured his continued employment and contributions to the police department. Todd also draws the Court’s attention to the Seventh Circuit’s decision in Sehie v. City of Aurora, which he argues supports a determination that attendance at the AA meetings and psychiatric evaluations was primarily for LFUCG’s benefit.

In Sehie v. City of Aurora, a former emergency dispatcher sued her employer under the FLSA claiming that her time spent attending and traveling to and from counseling sessions mandated by her employer was compensable “work” under the FLSA. Sehie v. Aurora, 432 F.3d 749, 750 (7th Cir.2005). These counseling sessions stemmed from a fitness for duty evaluation that was performed after Sehie was involved in an incident at work. Id. at 750. Upon completion of the evaluation, it was recommended as a condition of Sehie’s continued employment that she attend weekly psychotherapy sessions for six months. Id. The Seventh Circuit upheld the district court’s finding that the sessions were primarily for the employer’s benefit. Id. at 752.

However, the facts of Sehie are clearly distinguishable from the instant case. First, in Sehie, the Seventh Circuit explained that because the counseling sessions were required and there was a shortage of telecommunications staff, a strong inference arose that the sessions were for the employer’s benefit. Id. at 752. In this case, 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 which arose in Sehie, does not arise in this case.

In Sehie, the court also found that the notion that the sessions were for the plaintiff’s benefit was undermined by the fact that she was not permitted to see the therapist with whom she had an existing treatment relationship. Id. In this case, Todd was permitted to attend sessions with the psychiatrist of his choosing and was able to attend the AA meetings that best met his needs. This supports a finding that the sessions were primarily for Todd’s benefit. Furthermore, unlike Sehie where the employer’s payment of ninety percent of the costs of the counseling sessions was found to support a finding that the sessions were for the employer’s benefit. In this case, Todd apparently bore the costs of his various treatments.

The final significant distinction is that in Sehie, the counseling sessions were required because of an incident that occurred at work. In this case, the incident giving rise to Todd’s fitness for duty evaluation occurred while he was off-duty and at home. Furthermore, the purpose of the counseling sessions in Sehie was to enable the plaintiff 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” her incident at work. Id. at 752. The sessions sought to enable Sehie to manage her emotional problems which had become an issue at work, properly respond to 911 calls and remain on the job in a position that was short staffed. Id. None of these facts are present in the instant case. There is no indication that there had been any problem with Todd’s on-duty performance. Furthermore, the counseling sessions were not designed to improve his on-duty performance, but to keep him at its existing level in the face of the reasonable threat that his substance abuse problems might make him unfit for duty and endanger himself or the public. As discussed above, there is also no indication that LFUCG received any significant benefit from keeping Todd on-duty. Even accepting that Todd was an excellent police officer, there is no indication that his position was short-staffed so that a course of treatment that allowed for his retention was primarily for LFUCG’s benefit.

As a result, the Court declines to apply Sehie’s holding to these facts. Moreover, this court heeds the 7th Circuit’s caution that “by no means does our ruling suggest that every time an employer gets help for its employees, the employee must be compensated for hours worked.” Id. at 752. Instead, the Court finds that the AA meetings and psychiatric evaluations were not necessarily and primarily for the benefit of LFUCG. The record certainly supports that Todd was a valued and capable police officer . However, there is no evidence that his retention was in any way crucial to the operations of the police department. Instead, it appears that the primary beneficiary of the psychiatric evaluations and AA sessions was Todd. He has acknowledged that sobriety has improved his life and familial relations. Sobriety has also allowed Todd to retain his employment with the police department, which was apparently threatened by his substance abuse problems. The Court cannot find that while in treatment, Todd learned any skills that enabled him to become a more effective or valuable police officer. The skills that Todd learned 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. While in other contexts, the rigid restrictions put in place by the LFUCG might lead to a different conclusion, 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.

C. Whether Todd’s treatment was an indispensable part of the primary activities of Todd’s Employment as a Police Officer?

The Court also finds that Todd’s treatment was not an indispensable part of the primary activities of his employment as a police officer. As LFUCG indicates, the primary activities of police officers include activities such as patrol assignments, apprehending criminals, performing investigations and responding to the various happenings of daily life affecting the public safety. Sobriety is not a primary activity of a police officer’s employment despite the fact that an officer’s lack of sobriety may have a detrimental effect on his ability to perform the requirements of his job adequately. Todd clearly was required to expend significant energy to achieve his sobriety so that he could continue to be an effective police officer. However, he performed no police work while at AA meetings or psychiatric evaluations. This is the case despite the fact that these sessions were required as a condition of his continuing employment. Consequently, these sessions themselves are not a primary and indispensable part of the duties of a police officer.

For the reasons discussed in this opinion, it is the Court’s determination that Todd’s attendance at numerous AA meetings and psychiatric evaluations since March 1, 2006, which were mandated by his employer, does not constitute compensable “work” under the FLSA.”

Leave a comment

Filed under Work Time