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CTDOL’s Interpretation of Travel Time Not “Reasonable”; What Happens Next?

Posted in Highlight, Laws and Regulations, Litigation, Wage & Hour

So if last Tuesday’s post about the latest Connecticut Supreme Court decision on travel time was for employers, this post is for the ones who love the nuances of the law.

Dan Klau on his Appealingly Brief blog did a deep dive into the decision. And it wasn’t pretty.

Commuting at 1964 Worlds Fair

The issue Dan highlights is this: The Connecticut Department of Labor’s (“DOL”) interpretation of its own regulation on travel time was first rejected because that interpretation had not been time-tested and was not the product of formal rule-making procedures.

But it was also rejected because the Court said the agency’s interpretation was also not reasonable. Dan questions this:

The DOL based its interpretation of its regulation on a 1995 opinion letter of the United States Department of Labor concerning travel time under the federal Portal-to-Portal Act of 1947. The DOL expressly referenced that letter in a written guide it published, “A Guide to Wage and Workplace Standards.” (The link is to the 2014 revision, which appears to contain the same relevant text (see p. 38) at issue in Sarrazin.) The Court noted that Congress had rejected that position (on policy grounds) in 1996, “yet the department’s handbook inexplicably fails to acknowledge the questionable history of the 1995 opinion letter. . . .” This, according to the Court, is what made the DOL’s interpretation of its own regulation unreasonable.

I fail to see why the DOL’s statement that it interpreted its own regulation in accord with the 1995 opinion letter means that its interpretation is “unreasonable.” It seems to me that the question of reasonableness turns on the “fit” between the 1995 opinion letter and the text of the regulation, not on whether Congress, as a policy matter, disagreed with the 1995 opinion letter. Congress’s intentions are certainly relevant to federal law, but not to the reasonableness of the DOL’s interpretation of its own regulation. Employment lawyers, what say you?

There’s more, of course, to this story. It actually starts with a 1994 US Department of Labor Opinion letter which ruled that the time spent by an employee traveling from home to the first work assignment, or returning home from the last assignment, in an employer provided vehicle was similar to that of traveling between jobs during the day and therefore represented a principal activity, which must be compensated. No compensation would be required in cases where employees used their own personal vehicles.

But in 1995, the US Department of Labor issued a revised Opinion Letter withdrawing its 1994 opinion.  In doing this 180 degree turn, it held that time spent traveling between the employee’s home and the first work site of the day and between the last work site of the day and the employee’s home need not be compensated if: (1) driving the employer’s vehicle between the employee’s home and work sites at the start and end of the workday is strictly voluntary and not a condition of employment; (2) the vehicle involved is the type of vehicle which would normally be used for commuting; (3) the employee incurs no costs for driving the employer’s vehicle or parking it at the employee’s home or elsewhere; and (4) the work sites are within the normal commuting area of the employer’s establishment

It is this questionable u-turn that became an issue in 1996 when Congress passed the Employee Commuting Flexibility Act of 1996, § 2102, purporting to resolve the issue once and for all.  In 2001, the USDOL issued another opinion letter noting its passage and its impact on the Portal-to-Portal Act:

The “Employee Commuting Flexibility Act” (Section 2102, Public Law 104-188) amended the Portal-to-Portal Act to allow employers and employees to agree to the use of employer-provided vehicles for commuting to and from work, at the beginning and end of the workday, without the commuting time being counted as hours worked. In order for this commuting time not to be considered hours worked, the use of the employer’s vehicle must be within the normal commuting area for the employer’s business or establishment and the use of the vehicle must be subject to an agreement between the employer and the employee or employee’s representative.

I think Dan may be on to something about the reasonableness, but the Connecticut Supreme Court’s opinion does go a bit further than the portion he quotes.  The court notes that the Connecticut Department of Labor fails to “offer any explanation as to why the department nonetheless relies on an interpretation superseded by congressional action to interpret § 31-60-10 of the regulations.”  In other words, the Court appears troubled by the notion that the CTDOL would rely on the 1995 opinion letter (which some view as an outlier) without any explanation why.

It is this failure to explain that, in my view, is what makes the CTDOL’s interpretation “unreasonable.” Did the CTDOL just not know about the reversal? Or just not care? Or put another way, it could appear to a reader that the 1995 opinion letter is still the law of the land when, in fact, it has been explicitly overruled by Congress in 1996.

A reading of the CTDOL’s guide shows this lack of nuance. It states unequivocally that “The U.S. Labor Department issued an opinion letter in 1995 that covered the subject.”  But as I’ve just shown, the issue is far more complex than it outlined there and a more accurate statement might reflect the back-and-forth history of the issue.

And this, perhaps goes to a final word of note.  The Court’s opinion can be viewed as a gentle (or perhaps not so gentle) slap at the Connecticut Department of Labor to perform its duty through detailed regulations that are subject to analysis and discussion.  The court appeared plainly troubled that a mere “guide” to employment law would suddenly be an important interpretation of both a statute and regulation.

Regardless, this appears to be the end of the story for now. At least until the Connecticut General Assembly gets its hands in this issue in 2015 because it is highly unlikely that the Connecticut Department of Labor will engage in formal rulemaking on this issue.

 

  • Jay Wolman

    The CT DOL is interpreting its own regulations, which were not themselves amended by the Portal to Portal Act. Thus, it is of no consequence that another legislature amended another jurisdiction’s law for an agency that merely found that jurisdiction’s pre-amendment opinion letter persuasive.
    I’m curious about the whole time-tested reasoning. There must always be a first test.