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MRSC has joined with Janice Corbin and Janet May, Partners, Sound Employment Solutions, Rhonda Hilyer, President, Agreement Dynamics, Bruce Schroeder, Employment/Litigation Attorney, Summit Law Group, and Mark Busto, Attorney, Sebris Busto James, to bring you the "HR Advisor" article series on employment and labor law issues affecting Washington local governments. The "HR Advisor" will feature a new article each month with timely HR management information and advice you can use.*
Has Commuting With a Company Car Become “Work” Time?
December 2007
Bruce Schroeder
Employment/Litigation Attorney
and
Elizabeth Kennar
Employment/Litigation Attorney
Summit Law Group, PLLC
In a surprising deviation from federal law, a divided panel of the Washington Supreme Court recently found that travel time from home to the first jobsite and from the last jobsite to home was compensable because the Brink’s home security installation and service technicians drove company-provided vehicles and were not allowed to make personal stops during their commute. Stevens v. Brink’s Home Sec., Inc., October 18, 2007. This decision may have implications where companies furnish cars for employees to take home.
Facts At Issue
A class comprised of 69 installation and service technicians (Technicians) brought this lawsuit under the Washington Minimum Wage Act, claiming that they were entitled to additional compensation for their commute time when they traveled in company-provided trucks. Brink’s allowed Technicians one of two options for commuting. Technicians could choose to drive from their homes to the Company headquarters in Kent and pick up a Brink’s truck and then drive to their first jobsite. In this case, the time spent traveling from home to work and work to home was considered normal commute time and not compensable.
As an alternative option, Technicians could choose to take the Brink’s truck home with them and drive straight from their home to their first jobsite. Under this scenario, the Technicians received their daily assignments while at home via telephone or hand-held computer. Brink’s also considered the time spent driving from home to the first jobsite, and from the last jobsite to home, normal commute time and non-compensable. It was only this second alternative that was at issue in the case: that is, whether the time spent traveling from the employee’s home to the first jobsite at the beginning of the work day, and from the last jobsite to home at the end of the day, was compensable.
The Majority Decision
The superior court ruled that this travel time was compensable. A majority of the Washington Supreme Court affirmed. According to the Court, the time spent traveling from home to the first jobsite and back again in a Brink’s provided vehicle was compensable if the Technicians were “on duty” at the “employer’s premises” or “prescribed workplace” during their commute. This is because the definition of “hours of work” under Washington law is as follows:
“Hours worked” shall be considered to mean all hours during which the employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed workplace.
WAC 296-126-002(8). In determining whether the Technicians were “on duty” while commuting to their first jobsite, the Supreme Court considered the analysis in Anderson v. Department of Social and Health Services, 115 Wn. App. 452 (2003), in which the court of appeals held that state employees who worked at the Special Commitment Center on McNeil Island were not entitled to compensation for time they spent traveling to work on the state/employer provided ferry because during the passage the employees were allowed to engage in various personal activities and performed no work. In contrast, the Washington Supreme Court held that the Technicians were “on duty” during their commute because their personal activities were significantly restricted. The Technicians could not carry non-Brink’s employees as passengers, were prohibited from engaging in personal activities, such as running errands on the way home, and were required to obey traffic laws. In addition, the Technicians were required to obtain their jobsite assignments via voicemail or handheld computer and could be redirected during their commute to another jobsite. Thus, the Court found that the restrictions on the Technicians’ drive time were sufficient to render them “on duty” during their commute to their first jobsite and from the last jobsite to home.
Having found the Technicians were “on duty” during their commute, the Supreme Court next evaluated whether the Brink’s vehicle could be considered the “employer’s premises” or “prescribed workplace” under the definition of “hours worked.” According to the Court, the trucks served as the employer’s workplace because the Technicians carried the equipment and tools necessary to complete their jobs, and the Technicians were required to complete their paperwork either at the customer’s home or in their truck. Having found that the Technicians were “on duty” and at the “employer’s premises” while commuting in the Brink’s trucks from their home to their first worksite and back home again, the Court awarded the Technicians compensation for this commute time, prejudgment interest at the rate of 12%, and their attorneys’ fees.
The Concurring Opinion
Two justices agreed that the commute time was compensable, but unlike the majority opinion, Justices Madsen and Fairhurst found that the truck could not be considered a “workplace” under WAC 296-126-002(8). Rather, these justices found the travel time was compensable because it inured for the mutual benefit of the employer and employee. According to a policy statement issued by the Department of Labor and Industries, “hours worked” means the following:
Time spent driving from home to the jobsite, from jobsite to jobsite, and from jobsite to home is considered work time when a vehicle is supplied by an employer for the mutual benefit of the employer and the worker to facilitate progress of the work. All travel that is an integral and indispensable function, without which the employee could not perform his/her principal activity, is considered hours worked. Employment begins when the worker enters the vehicle and ends when the worker leaves it on the termination of that worker’s labor for that shift.
Administrative Policy, ES.C.2 at 2 (emphasis added).
The concurring justices found the commute time between home and the first jobsite meets this definition of “hours worked” because both the Technicians and employer derive a mutual benefit from allowing the Technicians to use the Brink’s truck for such travel time. The Technicians benefit by not having to travel to the Kent headquarters to obtain the truck before beginning work. According to the concurring opinion, “the employer also benefits because when a technician leaves his home for a customer’s home, he or she is engaged in the transport of essential supplies for the jobs he does—an essential part of his work function.” The employer is also free to redirect the Technician to a service call when needed on their drive to and from work, and the trucks bear the Brink’s name and telephone number, thus advertising the Company.
The Dissenting Opinion
Two of the nine justices dissented and found the commute time was not compensable because the Brink’s truck was not “the employer’s premises or prescribed workplace.” According to the dissent, the majority found the truck the workplace because (1) the vehicle is necessary to reach the customer’s homes and carry the necessary tools and equipment, (2) the Technicians periodically perform paperwork in the truck, and (3) they are required to keep the truck clean, organized, safe and serviced. The dissent argued that none of these factors changes the truck from a mode of transportation to a workplace.
Will This Decision Impact You?
While this is a troubling decision for Washington employers, it is important to note what the majority decision does not hold. The case does not hold that normal commute time between the employee’s home and work is compensable if the employee is allowed to use an employer provided vehicle. The parties and Court in Brink’s agreed that this time was not compensable. This would certainly cover police officer take home vehicles where the officer drives straight from home to the police station. The Brink’s decision only applies to those situations where an employee takes a company-provided vehicle home and then drives directly to their first worksite rather than the public employer’s offices. Thus, for example, the Brink’s decision would apply where a code inspector, assessor, project manager or engineer uses a public vehicle for commuting, and drives directly from their home to their first worksite. In that situation, Brink’s holds that this travel time is compensable and should not be treated as normal commute time. The relatively easy answer to avoid treating this travel time as “hours of work” is to require employees to report first to the public employer to obtain their daily assignments, rather than allow them to travel from home to their first jobsite. In that situation, the travel time between home and work is not compensable. Of course, the time spent traveling from work to the first jobsite and between jobsites is compensable. Alternatively, a public employer could eliminate the option of allowing employees to take public vehicles home. This too would avoid creating “work time” out of what has historically been treated as normal commute time.
| Bruce Schroeder is an employment / litigation attorney with Summit Law Group, Seattle. Bruce's practice is concentrated on representing management in the entire range of employment law matters. More. |  |
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Janice Corbin is a partner with
Sound Employment Solutions, LLC, Seattle. Janice has over 15 years of
human resources experience with the Seattle Police Department and the
International Harvester Truck Company and has worked in the law enforcement
field for over 22 years.
More.
Janet May is a partner and attorney with Sound Employment Solutions, LLC, Seattle. Janet has over ten years of experience in the labor and employment law field, and has represented both management and labor. More. |
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| Rhonda Hilyer, President and Founder of Agreement Dynamics, is an international consultant with a reputation for helping convert traditional, conflict-based environments into productive, collaborative ones. More. |  |
| Mark Busto, Attorney with Sebris Busto James, Bellevue, is a seasoned employment law counselor and litigator with a strong professional background in labor-management relations. He has represented employers in discrimination cases before judges and juries in both state and federal court and has arbitrated many labor and employment matters. More. |  |
*The Articles appearing in the "HR Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.