Compensation for Travel Time: The Second Circuit Provides Some Clarity
August 17, 2011
The issue of whether to compensate an employee for commuting time can be a difficult one where the employee does not have a single standard work location to which he reports. When the employee’s home base is his home, and he performs work at home each day before he gets on the road, is he entitled to be compensated for all time spent commuting between his home and various work sites? The United States Court of Appeals for the Second Circuit recently held no – at least not when the employee is not required to perform the home tasks immediately preceding or following required travel to other work sites.
The case was brought by a former employee of Black & Decker whose responsibilities included merchandising and marketing Black & Decker products at six Home Depot stores which were located between 20 minutes and three hours from his home by car. Black & Decker’s travel policy, adopted pursuant to a USDOL opinion letter, only paid for travel time going to a first store of the day or returning home from the last store of the day in excess of 60 miles (converted in practice to travel in excess of 60 minutes). So travel of 1.5 hours at the end of the day would only be compensated with half an hour of pay.
The employee performed a variety of administrative tasks at his home such as sending and answering e-mails and voice mails, reviewing sales reports, organizing materials and making displays and signs. He claimed that he spent 15-30 minutes before he left home and 15-30 minutes after he returned home each day performing these administrative tasks. Black & Decker contended the tasks did not have to be performed at his home or at any particular time of the day. There was no dispute that the employee was compensated for performing the tasks.
The employee argued that he because he performed these tasks immediately prior to and immediately subsequent to traveling to the Home Depot stores, he was entitled to compensation for all time spent traveling under something known as the “continuous work day” rule. This rule defines the workday as the period between the start and completion on the same workday of the employee’s principal activities. Under this rule, once an employee commences principal activities, or activities which are integral and indispensable to principal activities, all time during the same work day is compensable. The employee argued that the continuous work day rule applied because his work at home prior to traveling to the first store of the day was a principal activity, or at least integral and indispensable to a principal activity, so he was entitled to be compensated for all morning travel time, not just that in excess of 60 minutes. He also argued that his end of day activities extended the continuous workday to include all travel time coming home from his last store of the day.
The Second Circuit disagreed, concluding that the continuous workday rule did not apply. Instead, the Court relied on the well-established general principle that home to job site travel is not compensable. The fact that the employee performed administrative tasks at home at his election, just before and just after traveling, could not turn otherwise non-compensable travel time into compensable time by invoking the continuous work day rule. The Court found no evidence that the employee was required to perform the activities either immediately preceding his morning travel or immediately following his afternoon travel, and that he was free to perform them whenever he wanted and to use time for his own personal activities after performing them rather than getting on the road to a store location. As a result, the employee was not permitted to make the choice himself to perform the activities immediately before and after traveling and then invoke the continuous workday rule to increase his travel time compensation.
