December 1, 2007

Compensable Commute?


Winter 2007

It is a well-settled general principle of wage and hour law that the time spent commuting between home and work, whether coming or going, is noncompensable. But, on October 18, 2007, the Washington Supreme Court turned this principle on its head, in the case of Stevens v. Brinks Home Security, Inc., 169 P.3d 473 (Wash. 2007). Now employers are reviewing their employment policies to ensure that they will not be liable for unpaid wages for time spent driving.

In Brinks, installation and service technicians were provided with company trucks bearing the company logo and outfitted with tools and equipment. Brinks used a two-tier program for technicians to use a company-provided truck. Under option one, a technician would drive a personal vehicle between home and work, where the company vehicle was kept. Under option two, known as the home dispatch program ("HDP"), a technician would drive the company truck to and from home. Brinks compensated all technicians for the time spent driving between jobsites but not under the HDP for the drive time from home to the first jobsite and from the last jobsite to home, unless the first or last jobsite was more than 45 minutes from the technician's home. Sixty-nine technicians using the HDP sued for recovery of wages for drive time for all hours.

The issue before the court was whether the 69 technicians in the HDP were on the "employer's premise and or a prescribed worksite" for purposes of the Washington Wage Act. The court was required to define "hours worked… on the employer's premises or at a prescribed worksite." The technicians argued — and the court agreed — that the company-provided truck was the "employer's premise and/or a prescribed worksite." To support this interpretation, the court said that Brinks strictly controlled the use of the company truck "for company business only." The court also found that the company had other polices, including no transporting of non-Brinks passengers, mandatory wearing of seatbelts, obeying traffic laws, locking the vehicle at all times, never carrying alcohol, and no engaging in personal activities while driving the truck. Technicians also were considered to be on duty during their drive time and would be subject to redirection by Brinks supervisors at any time, including before the first jobsite and last jobsite of the day.

Most states have similar statutes and regulations covering what constitutes "hours worked." Some states, like Oregon, even have rules about travel or drive time. Employers should evaluate their policies regarding company-provided vehicles, especially if the employee is driving the vehicle to and from home each day while performing work.

Critical to this evaluation are such factors as these identified in Brinks:

  1. Is the employee subject to direction or redirection before reaching the first or after leaving the last jobsite of the day by supervisors?
  2. Is the employee use restricted to company business only?
  3. Is the employee prohibited from carrying nonemployee passengers?
  4. Is the employee required to wear seatbelts, never carry alcohol, and obey traffic laws?
  5. Is the employee prohibited from engaging in personal activities while driving?
  6. Is the employee receiving job assignments at home via email or other electronic notice and planning his route at home prior to departure?
  7. Are the company name and logo prominently displayed on the company vehicle?

If the employer has these policies and if the employee is subject to discipline for violating such policies, the employer is at substantial risk for a finding that the employee was on duty during all hours while driving. In such cases, the employer may be subject to a claim for unpaid wages, penalty wages, and even attorney fees. An employer should consult legal counsel to ensure compliance with the wage and hour laws of the state of operation.

Employers may also seek assistance from state agencies that enforce wage and hour laws. Such agencies may provide advisory letters on a given situation. But whatever an employer does, it will probably be less expensive in the longrun to pay wages due rather than to be subject to a claim for unpaid wages, penalty wages, and attorney fees.

Employer beware! Avoid liability for drive-time wages by limiting the control exerted over an employee's personal activities while driving the company's vehicle. Do not provide job assignments via email or handheld computer to the employee at home, and do not require the employee to be on duty and subject to redirection before reaching the first or after leaving the last jobsite of the day. Consult legal counsel for assistance as necessary.

For more information on this topic, please contact or call (888) 598-7070.


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