Gibbs v. City of New York, No. 12-CV-8340 (S.D.N.Y. Jan. 23, 2015): The Southern District of New York held that the Fair Labor Standards Act (FLSA) does not require an employer to pay overtime to two female police officers whom the New York City Police Department (NYPD) required to attend alcohol treatment and counseling in order to avoid discipline or dismissal. The district court held that attending inpatient treatment and after-hours sessions for substance abuse was not compensable “work” under the FLSA.

As a result of the NYPD’s Counseling Services Unit’s initial assessment, the plaintiffs attended outpatient counseling, which took place both during and after working hours. The NYPD paid the plaintiffs their regular rate of pay for any treatment or counseling attended during working hours, but it did not pay either officer for participation in after-hours sessions. The plaintiffs argued that they were owed overtime for time spent at inpatient treatment and after work sessions. However, the district court held that such activity was not compensable “work” under the FLSA because it was not “controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” The court also held that, even if the treatment was “work,” the activity would be excepted from overtime compensation under the Portal-to-Portal Act. Based on this ruling, employers maintaining substance treatment and other required off-duty programs may be able to claim that such time is non-compensable, but they should carefully examine their policies and practices to ensure compliance with wage and hour laws.