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?

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.

George Clooney famously made business travel look (somewhat) cool in the movie, Up in the Air.

Clooney’s character was single (really, would you expect otherwise?) and business travel was a bit glamorous (though a bit tedious as well).

Perhaps not surprisingly, absent from the movie was a discussion of whether business travel could be the subject of a federal lawsuit.

What Would Clooney Think?

A federal court case on Friday, however, had to tackle the issue in Burgos v. City of New Britain (download here).  In Burgos, a police sergeant was ordered to attend training in Alabama.  The sergeant indicated that he had concerns about child care and having to travel out of state for training.

(He was also asked to sign liability releases which he also claimed were discrminatory — but the court easily dismissed those claims).

Nevertheless, the sergeant went and the day after arriving, he informed his employer that he had a family medical emergency (no word on what that emergency was).

Arrangements were made to fly him back to New Britain later that day. He was paid 5 hours of overtime for the 24 hour period he spent in Alabama.

The sergeant filed a federal lawsuit though still.  Among the claims: He alleged (under Section 1983) that because the Supreme Court had recognized a right of association to engage in an intimate relationship with others, he had a claim that the mandatory business travel violated his rights.

The District Court disagreed. It noted that while there is some right recognized by the Supreme Court it wasn’t clear whether this right to familial association existed under the First Amendment or the Fourteenth Amendment.  But regardless of which test might apply or the parameters of the right itself, the sergeant’s rights weren’t violated here.

The Court said that the sergeant failed to show that his family relationship ended because of the travel (or was impacted in any significant way, for that matter).  The court also said that he failed to show that there was an undue intrusion into his marriage simple because he was forced to arrange for child care for a period of up to a week because of his wife’s work schedule.

The court added:

Imposing on an employee a requirement that forces the employee to make arrangements for child care for a period of one week or less to accommodate his spouse’s work schedule does not constitute an undue intrusion into the employee’s familial relationship.

The takeaway from this case? The issue of whether business travel violates the federal rights of a public employee is probably not “Up in the Air” anymore.