Joining a decision issued last fall by Southern District of New York Judge Andrew Carter, Judge Ronnie Abrams has also ruled that time spent by New York City employees in alcohol counseling required by their job did not constitute “work.”  Gibbs v. City of New York, 2015 U.S. Dist. LEXIS 7960 (S.D.N.Y. Jan. 23, 2015).

Citing Judge Carter’s decision in Makinen, Judge Abrams in Gibbs ruled both that attending such counseling did not qualify as “work” under the Supreme Court’s definition set forth in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944), and that, even if the counseling could constitute work underTennessee Coal, the sessions were “non-compensable postliminary activities” under the Supreme Court’s recent decision in Integrity Staffing.  The Court wrote that while practical considerations associated with finding the time compensable did not “drive the Court’s conclusion,” they did “resonate . . . [because to] hold that the FLSA requires an employer to compensate in the circumstances of this case would risk creating a material disincentive to the growing use of employee assistance programs and so-called ‘last-chance agreements’ in this and similar circumstances.”

Gibbs joins Integrity Staffing in the body of recent decisions helping to define the scope of the compensable work day.