cablecarI’m looking forward to “seeing” lots of you at next week’s free webinar we’re having on the new overtime rules and how they impact Connecticut employers.

One of the issues that we’ll touch upon is how the new rules are going to add complications for many employers — and particularly non-profits.

Take, for example, an employee whose job requires travel in Connecticut, perhaps meeting clients.  If that employee makes under the new salary threshold — $47,475/year — (and doesn’t meet any other exemption) then the employee will have to be classified as non-exempt, and therefore eligible to receive overtime.

All of a sudden, time spent travelling needs to be tracked and accounted for. And those rules aren’t necessarily easy.

I’ve talked a bunch about these rules in prior posts (here, here, and here, for example). The interaction between state and federal law on the subject is enough to make your head spin.

But the gist of it is that non-exempt employees will need to be paid for travel time during normal working hours (whatever those may be), but not necessarily for commutes to and from work.

If you are moving an employee from exempt status to non-exempt status, it’s just another example of how application of the relatively straightforward new overtime rule can have added complications.

For more on these issues, feel free to sign up for our June 7th at noon webinar.

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.

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

In a decision officially released today, the Connecticut Supreme Court (Sarrazin v. Coastal, Inc.) has concluded that a plumbing foreman who carried his tools to and from work was not entitled to be compensated for his commuting time.

That’s about the only simple thing about the decision for employers.

The case addresses complicated and head-spinning issues such as pre-emption, interpretations of administrative regulations, and something called the Portal-to-Portal Act.    Arguably, it took the court over a year (!) to issue a written decision on it after argument way back in April 2013 because the issues are so dense.

(So much for my prediction of a decision on the case last year.)

A case that had the potential to be a blockbuster ends up being a bit of a snoozer for employers.

Don’t get me wrong — lawyers will love this case. Dan Klau, in his delightful Appelingly Brief blog on, well, appellate law, highlights a technical issue with the decision and calls out this blog to respond which I will do in a followup post.

But for employers, it’s hard to imagine you’ll get too excited about it.

That said, if you have relied upon page 38 of the Connecticut Department of Labor’s Guide to Wage & Workplace Laws (you don’t use it for bedside reading?), you may not want to believe everything in its description on “Travel Time”.  The Connecticut Supreme Court concludes that the CTDOL’s interpretation in this section should be rejected because it ignores additional legislative history.

The department’s interpretation of § 31-60-10 of the regulations was not promulgated pursuant to any formal rule-making procedures or articulated pursuant to any adjudicatory procedures, has not been time-tested or subject to judicial review in this state.

So, for now, employers in Connecticut can continue to follow federal law in travel time compensation and should beware of reading the CTDOL’s Guide too literally.

From time to time, there are various questions that keep recurring in the labor & employment law area.  One of them is in the area of travel time for non-exempt employees.

(For exempt employees, they get paid a fixed salary no matter how much time they work or travel.)

What if you commute on a cable car?

The easiest question to answer is whether an employee needs to be paid for the time he or she spends going to and from work each day. The answer is plainly no.  Commuting time  — even if it snows on the way home — is not compensable.

(Of course, the law being what it is, there are some notable exceptions. For example, if the employer requires, as a job requirement, that a large company truck, be taken by employee home, that might change the equation in some instances. Also, if the employee does work at home to start the day, the “commute” might simply be an extension of the workday which had already begun.)

And what happens if the employee doesn’t go into the home office first, but goes directly to a client or another office?

The U.S. Department of Labor has guidance as follows:

An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

And what if the employee is travelling away from home on a business trip? Here too, the USDOL’s guidance is instructive.

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

There is, of course, lots more nuance to this law.  My former colleagues who run the Hospitality Labor & Employment Law Blog had a very good post on the subject earlier this year if you’re interested.

Mileage Reimbursement

I’m often asked what some of my most popular posts are on the blog.  Surprisingly, one topic that always seems to generate interest is the mileage reimbursement rate.  I’m not quite sure why.

In any event, the new rate became effective January 1, 2012.  Remember, this is the optional standard mileage rates. These rates are typically used by businesses to help calculate mileage expenses for employees.

It was last adjusted in mid-2011 and the 2012 rate is unchanged from that.  Beginning on Jan. 1, 2012, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be 55.5 cents per mile for business miles driven.

This rate can be particularly important in states like California.  California Labor Code section 2802(a) states that an employer must indemnify its employees for expenses they incur in performing their job duties. While this won’t include commuting miles, it likely covers employees for mileage driven for business purposes in personal vehicles.

As a reminder, companies with personnel policies about their mileage reimbursement should consider updating their policies immediately to reflect this change. In the future, employers can draft a policy that states that their standard mileage rate will be consistent with the IRS’s rate without reference to a particular number.

For non-exempt employees (in other words, those employees eligible for overtime), a common question is whether an employee should be paid for commuting time.  The answer to that question is typically no.

Now suppose the employee carries their work files in a briefcase to and from work, does that change the analysis? According to a recent Second Circuit decision (which covers employers in Connecticut, New York and Vermont), the answer is still no.   In doing so, the Second Circuit in Singh v. City of New York has clarified the limited circumstances when an employee may be paid for their commuting time. 

When is that? Well, under the Fair Labor Standards Act (FLSA), the employee must engage in work for the employer’s benefit at the employer’s request, in order for commuting time to be compensable.  In addition, if an employer’s policies increase that commuting time by a trivial amount, the employee is still not entitled to be paid under the FLSA.  

When is work required during a commute? When the employee’s work during that time is integral and indispensable. It typically depends on whether the time is spent predominantly for the benefit of the employer ("predominant benefit test"). For commuting, the Second Circuit indicated that the:

appropriate application of the predominant benefit test is whether an employer’s restrictions hinder the employees’ ability to use their commuting time as they otherwise would have had there been no work-related restrictions.

For employers, and particularly with the addition of BlackBerrys, this case emphasizes that the employer should review its policies and practices to ensure that commuting time remains non-compensable.  In particular, the employer can emphasize that non-exempt employees should not perform work during their commute.