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.