Paying an Employee for Commuting Time? Probably Not, But It Depends, Says Court

Posted on May 12, 2008 by Daniel Schwartz

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. 

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Welcome Back....Some Employment Law Posts To Catch Up On

Posted on April 7, 2008 by Daniel Schwartz

With my trial now over (and post-trial motions now beginning), it's time finally to catch up on some of the posts I've flagged over the last few weeks, but haven't had a chance to remark on.  Over the next week or two, I'll be commenting on other developments. As you might expect after coming off a nearly-month long trial, there's quite a backlog of work and issues to get to so with a little patience, I hope you'll be rewarded.  Here's the first batch of notable posts:

  • Just when you think things can't get any weirder, the National Law Journal publishes its annual Top Ten list of wackiest employment law cases.  My favotite, Number 4 - the employee had "Jesus-guy syndrome."  (H/T Ohio Employer's Law Blog)
  • Wait a Second Blog reports this week on a notable Second Circuit case that held for the first time that employment discrimination laws are violated when a white employee is fired for being married to a black woman. The case is Holcomb v. Iona College, decided on April 1.
  • The Laconic Law Blog reports on new opinion letters by the U.S. Department of Labor regarding Fair Labor Standards Act.  The opinions are on fairly technical provisions but they may help clarify issues for public employers, law enforcement, and purchasing agents.
  • With the NCAA tournament wrapping up (and my bracket entry down in flames), the Nolo's Employment Law Blog reports on the effect of March Madness on the workplace.  I tend to think its a bit overstated.  Is there interest? Yes. But American Idol probably has more buzz in the office (and is much more watched) but there aren't lots of articles about that show.
  • And Evil HR Lady has the advice and story of an employer who received the non-resignation resignation letter.  You have to read it to believe it. 
Many thanks to all the guest bloggers over the last few weeks (I have one more post coming up this week).  It's only appropriate to hum a tune about being welcomed back....

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Wage and Hour Lawsuits - Legal Services Groups Filing Overtime Claims

Posted on December 18, 2007 by Daniel Schwartz

The latest news trend has been to report that wage & hour claims are the new "in" lawsuit filed by employment attorneys.  However, the cost of bringing such a lawsuit may still be onerous for some employees.

That's where the state's legal services organizations routinely fill the gap by offering their services free to people in need of an attorney.  Two new federal lawsuits filed on the same day last week by two different legal services groups in the state, show that these groups are not afraid to tackle employment issues and are doing so with increased frequency. 

(As always, readers are cautioned that the complaints contain mere allegations, not proven facts.)

In Morales v. Cancun Charlie's Restaurant, the Jerome N. Frank Legal Services represents a kitchen worker for a popular Milford restaurant.  (The Jerome N. Frank Legal Services organization is run by the Yale Law School.)  The Complaint alleges that the employee regularly worked over 100 hours per week and did not receive overtime.  The Complaint also alleges that he did not receive the appropriate minimum wage.  No response has yet been filed.

This is not a one-time gig for the Yale Law School legal services group.  For example, last month, the group brought a nearly identical claim against another Connecticut restaurant, the Mianus River Tavern, on behalf of two workers. Although the restaurant closed earlier this year, the Complaint alleged that these two workers did not receive any overtime for their work over the years. 

The Complaint in Godoy v. D&S Remodeling, LLC contains very similiar allegations as well and was also filed last week. Brought by Connecticut Legal Services , on behalf of 12 employees, the lawsuit alleges that these laborers for a construction company did not receive their wages as promised by the employer. The complaint also alleges that overtime and minimum wages were not paid for these individuals at various times.  No response by the employer has been filed yet either.

Will the employers raise as a defense the possible undocumented status of the employees? (The Complaints are silent as to whether these workers were authorized to work -- though no inference should be drawn on this without additional facts.)  The law on this is far from resolved. In 2002, the Supreme Court in Hoffman Plastic Compounds, Inc. v. NLRB (U.S., No. 00-1595, 3/27/02), determined that the National Labor Relations Board ("NLRB") could not award backpay to undocumented aliens for violation of the National Labor Relations Act ("NLRA") But the Department of Labor and other groups have suggested the the law is different for violations of federal discrimination laws and the Fair Labor Standards Act ("FLSA"). 

In any event, these new lawsuits should continue to serve as a cautionary tale for service industry companies in Connecticut such as restaurants and constructuion companies.  The overtime laws are, what they say they are.  Ensuring strict complaince with the law will remove lots of headaches down the road.  Keep good records, treat employees fairly and fix past mistakes where necessary.

While lawsuits involving the Legal Services groups may not "feel" like the typical employee-side attorney, they have the resources and the energy to ensure that these cases proceed like an ordinary lawsuit. These lawsuits should not be taken lightly. 

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Wage & Hour Class Action Certified Against Smith & Hawken

Posted on October 12, 2007 by Daniel Schwartz

U.S. District Court Judge Vanessa Bryant is having a busy week.  Today, she released a decision certifying a FLSA class action against Smith & Hawken based on an alleged failure to pay overtime.

In Holbrook v. Smith & Hawken, Ltd., the Plaintiff, a former assistant store manager (ASM) in the Glastonbury, Connecticut store, claimed that she was improperly classified as an exempt employee.  She moved for certification of a class under the FLSA and comparable state law.

Notably, Smith & Hawken conceded that all ASMs were subject to the same job description.  Smith & Hawken claimed that each store functions autonomously and the sheer number of ASMs and store locations should preclude that finding. The court disagreed.  In doing so, the court indicated that the Plaintiff's claims should proceed as a collective action since she was similarly situated to the other ASMs. 

The court need not find uniformity in each and every aspect of employment to determine a class of employees are similarly situated.... The consistent manner in which Smith & Hawken classified its own ASMs is sufficient to carry Holbrook’s burden, even in the presence of minute factual variances in treatment between store locations.

Ultimately, the court defined the class as "individuals employed as ASMs by Smith & Hawken within the three years preceding the date of this order who worked more than forty hours in
any week."  According to the Company's website, there are currently 58 stores in 23 states.   The parties have the next two weeks to come up with a plan on how to proceed in this case.

The "Assistant Manager" argument raised by the plaintiff is certainly not new in the context of wage & hour litigation.  But the case serves as a additional cautionary tale about classifying "assistant store managers" as exempt employees. 

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