Kenneth Burton began every workday by driving to a Hillsborough County, Fla., parking lot, where he parked his car, picked up a county vehicle containing tools and equipment and proceeded to Public Works Department job sites to inspect the work of subcontractors. At the end of the day, he returned the county vehicle to the lot, retrieved his own car and drove home. Burton and other county engineers with similar responsibilities were not paid for the time they spent driving the county vehicles to and from the job sites--about 1.5 to 3 hours per day.
In January 2004, Burton and several other field engineers filed suit against the county, seeking, among other things, compensation for the travel time. Under the Fair Labor Standards Act (FLSA), the engineers should have received overtime pay for that time, the 11th Circuit Court of Appeals ruled in May, upholding a lower court decision for Burton and his colleagues. In doing so, the court further defined what is compensable travel time under the FLSA and the Portal-to-Portal Act exception.
Congress passed the Portal-to-Portal Act in 1947, following a rash of lawsuits by employees seeking overtime compensation for time they spent commuting in company vehicles. It says that time spent traveling to and from work--before and after the principal activities of the workday--does not count as hours worked for overtime purposes. In Burton v. County of Hillsborough and the 6th Circuit case Chao v. Akron Insulation and Supply Inc., courts have held that travel time does count as hours-worked in situations where employers require employees to report to one worksite before traveling to a different site.
"What employers have to struggle with is the fact that the courts are tightening up the time employers don't have to pay for," says Lisa Schreter, shareholder in Littler Mendelson in Atlanta.
Good Deed Punished
Two key factors courts have taken into account to determine whether certain activities are compensable under the FLSA have been whether the activity in question benefits the employer and whether it is an integral part of the employee's principal work duties.
In Burton, the court found that the county benefited from the policy that required employees to pick up and drop off the county vehicles because the employees parked the vehicles at a secure site overnight and could not use them for personal activities. The court was not persuaded by the fact that the employees received the benefit of avoiding wear and tear on their personal vehicles.
"While the employees certainly benefited from the use of county vehicles ?? 1/2 that alone does not make the time spent traveling to and from the parking sites non-compensable since that time significantly benefited the county," the court wrote, citing a 1974 1st Circuit case, Sec'y of Labor v. E.R. Field Inc.
The court also found that the act of retrieving and driving the county vehicle was a "principal activity" of the job because the employees needed to travel throughout the county inspecting worksites. While some courts have held that the transport of tools to a worksite constitutes compensable travel time, this court found that even if tools had not been stored in the vehicles, the travel time was integral to the job and therefore compensable.
Not everyone who has read the case agrees on the wisdom of the decision.
"The county was trying to do the right thing for the employees," says Glenn Patton, a partner in Alston & Bird's Atlanta office. "This case is an example of no good deed goes unpunished."
But Jonathan Segal, a partner in Wolf, Block, Schorr and Solis-Cohen sees the decision as reasonable in light of the recent Supreme Court decision in IBP Inc. v. Alvarez, which found that time spent walking between changing areas and work areas after donning and doffing protective gear was compensable.
"Hillsborough County made picking up and dropping off the truck the first and last requirement of the day," he says. "When you require an employee to engage in activities before the 'real work' begins, if it is a mandated activity, it almost always is compensable and you have to pay overtime."
Patton says that as a result of the decision, any company whose employees drive company vehicles should beware of potential liability under the FLSA.
"While as a general rule home-to-work travel is not compensable, once you impose restrictions, there is a chance it is compensable time if there is any benefit to the employer," he says. "For example, if you require someone driving a company car to fill up at a particular gas station that is out of the way of his commute, he potentially could show that that time should be compensable."
Segal notes that employers also could be vulnerable if an employee is driving his or her own car but is required to pick up and drop off tools before proceeding to a worksite.
Another emerging issue involves wireless communications during the employee's commute.
"What do you do with the person who gets a phone call while traveling to and from work in a company vehicle?" Schreter says. "Congress conceived only of driving a company vehicle for commuting. They were not thinking about an employee talking to the employer while driving to work."
While the recent decisions may turn on complicated arguments about employer benefit and activities integral to the job, bringing policies into compliance is simple.
"The easy way to look at it is, what is the first task required of the employee? That is when the day begins. And what is the last task required? That's when the day ends," Segal says.
Drawing any other distinctions between compensable and non-compensable time is risky.
"Sometimes employers begin with the assumption that this is 'productive' time and that is 'non-productive' time, but litigation is so prevalent and so expensive that it is not a good idea to draw that line," Segal says.