Tuesday, January 8, 2008, 9:58 AM

Commuting Is Not Compensable Time

The Supreme Court has denied review of a December 2006 appellate decision, Adams v. United States, which is the last portion of a long-running dispute between the Government and federal law enforcement officers in the Secret Service, Customs and Border Protection, IRS, ATF and the DEA. Both the trial court (the Court of Federal Claims)and the appellate court (the US Court of Appeals for the Federal Circuit) found that the plaintiffs, who travel to and from work in government-owned police vehicles, are not entitled to pay for the time spent commuting although they are required to have their weapons and other related equipment with them, must be monitoring electronic communications, and are forbidden to perform personal errands.

"Merely commuting in a government-owned vehicle is insufficient" to render the time compensable, said the Federal Circuit. "[T]he plaintiffs must perform additional legally cognizable work while driving to their workplace in order to compel compensation for the time spent driving." Another key aspect of the decision was the conclusion that the plaintiffs had the burden of proving their entitlement to compensation for the travel time. Rejecting their contention that the employer had to establish the "exemption" of the time, the court explained that "exemptions" deal with individuals, not activities; therefore, plaintiffs must be able to show both that they performed work for which they were not compensated, and that "the alleged acts... constitute compensable 'work" at all."

Don't expect this to be the final word on compensable time. The plaintiffs' bar continues to press for expansive definitions of "work time," and the Supreme Court's 2005 decision in IBP v. Alvarez, dealing with some aspects of "donning and doffing," (see our December 26 post on Lemmon v. City of San Leandro) is only one example of the creative arguments which are being raised - and sometimes accepted - in FLSA litigation. Keep your powder dry for this battle - even though that may not be a compensable activity....


Blogger FM Sound said...

I find this interesting on several fronts.

As a factory worker in the States, I never expected to be paid for my commute, even when it totaled eight or more hours each week.

However, when I was working in Mexico and spending hours crossing the border in a cramped mini-van, I expected and received compensation (although the company cut that a few weeks after I left).

What it really boils down to here is whether riding or driving is work, and I think it is.

Truck drivers in a dual-driver situation get paid per load and/or mile. Should the trucker that is sleeping while his/her counterpart drives be docked pay?

To go a bit further, what if the co-driver is completing log books, or using a map for navigation?

Slippery slope is a cliche, but one that applies here.

January 18, 2008 at 2:20 AM  
Blogger Womble Carlyle Team said...

The issues presented in this question are easier to understand if one abandons the notion that wage-hour law is necessarily intuitive. Truck drivers are subject to an entirely different statutory framework which recognizes the realities of the employee who drives for a living rather than just as a means of getting to work, while also dealing with the safety concerns of having fatigued operators on the highway. For employees whose primary duties are not driving, the Portal-to-Portal Pay Act specifies that an employer is not required to pay for time spent by an employee "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and activities which are preliminary to or postliminary to said principal activity or activities," nor does that time count for purposes of overtime calculations. In other words, the "Fair Labor Standards Act" isn't always "fair" from everyone's point of view.

January 18, 2008 at 9:39 AM  
Anonymous Anonymous said...

If an employee, uniformed deputy sheriff, is required to sign on and go "on duty" by calling in on the car radio when leaving home, is the travel time to the office then compensated? The deputy may be called or may have to ake action as he/she is then considered on "patrol".

March 3, 2010 at 6:43 PM  
Blogger The Womble Carlyle Team said...

Thank you for your comment and question. However, the blog is intended to provide general information. For more information on FLSA issues, please see the firm's FLSA web page at http://www.wcsr.com/teams/fair-labor-standards-act. Thank you for visiting and commenting.

March 4, 2010 at 10:23 AM  

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