Driving the Work Truck or Riding in the Work Truck -
What Wages Need to be Paid?
By: Adam S. Kunz
Some of your employees ride to the jobsite in a company truck. Do
you pay wages for that time? Generally, the choice is up to
the employer. As long as you, the employer, understand and follow a
few basic rules, the law does not require you to pay employees for
commuting time when they voluntarily ride in a
company truck to the jobsite. You must pay them when they
arrive on the first jobsite and start work, and until they quit
work on the last jobsite of the day. The law does not require you
to pay for the time spent riding from home to work and work to
home. However, there is a very good chance that you do need to pay
the employee who drives the truck full of tools from your
headquarters to the jobsite, even if other employees hitch a ride
and are not paid for the ride time.
The Fair Labor Standards Act requires an employer to pay minimum
wage for all work hours, and to pay increased wages for
overtime. However, under the Portal-to-Portal Act, there is a
clear and specific exemption for commute travel time prior to work
and after work, even if the employee uses the employer's vehicle
for commuting between home and the jobsite.
A typical situation involves a service company doing contracted
work with crews at different jobsites. The job might be building
structures, maintaining grounds and landscape, pest control, or
other jobs. The workers often meet at the company yard and
ride to the jobsite in company trucks that also carry tools,
equipment, and work papers. The crews start work at the
jobsite. The Portal-to-Portal Act clearly exempts the drive
time from minimum wage and overtime laws, as long as the travel is
within the normal commuting area for the business, and there is an
understanding between the employer and employees.
If an employee is not paid for the time riding in the company truck
to the first jobsite, it is important that the employer and the
employee understand and agree that the use of the employer's
transportation is voluntary, not required. When the employee
has a choice to come to the jobsite in his own way (walking,
biking, driving, etc.) the employer can offer another commuting
option, such arriving early at company headquarters and riding to
the jobsite in a company truck with other members of the work crew,
and riding back to headquarters at the end of the work shift.
That kind of option can benefit an employee by helping them to save
money on the cost of transportation to and from work. Riding
to and from the jobsite is not the "principal activity" which the
employee is employed to perform, and the employer is not required
to pay wages for that time.
The Portal-to-Portal act also says that the travel should be
"within the normal commuting area for the employer's
business." What is "normal" depends first on the
understanding between the employer and the employee about what to
expect, and second on the regular practice of the business.
For many service companies, the company regularly performs work at
many different jobsites, many miles away from the company office or
yard. An employer should orient a new employee about this when the
employee is first hired.
There have been court cases about these laws. One employee
sued his employer, a building materials company, claiming unpaid
wages based on time spent riding to and from jobsites in a company
truck. The company owner explained to the Court that company
employees had a choice to drive their own vehicles to the jobsite,
or to ride in a company pickup or box truck to save their personal
money. The workers were told that they would not be paid for time
spent riding the company truck to work. The Florida court
recognized that the jobsites were part of the normal commute area,
even if they were in a different city or county from the company
yard.
The employee
testified that before getting into the truck, he would load tools
for the job, and claimed he should be paid for the loading work and
the subsequent riding to the jobsite. The Florida court determined
that loading the tools was "voluntary," "preliminary", and not an
"integral and indispensible" part of the employee's job because the
employee could have driven himself to the jobsite and the tools
would have been there for him to work with. Also, although
loading tools could be considered compensable activity, there was
no evidence that the employee spent significant time doing it. The
employee was typically moving tools from the cab to the bed of the
pickup truck, so that he would have a place to sit during the ride
to the jobsite. The employer was not required to compensate the
employee for this de minimus and voluntary activity that
took only a few minutes.
In a different case,
several employees sued their employer for overtime compensation
based on employer-required travel time. These employees were
each required to report to the employers yard, each required to
take a company truck full of necessary tools and documents to
jobsites, and also required to return the truck to the secure yard
at the end of each day. The employer did not pay employees for the
travel time between the yard and the first jobsite, or for time
between the last jobsite and the yard. In this case, the court
determined that picking up the truck, transporting the tools, and
bringing the truck back to the secure yard conferred a significant
benefit on the employer by getting the tools to the job, and by
protecting the trucks and tools from theft and vandalism. The court
found that taking the trucks to the jobsites, and back to the
secure yard was an "integral and indispensable part of the
employees' principal activities." It also took a significant
amount of time, between 7.5 and 15 hours per week for each
employee, so it was not a few seconds or minutes of work that could
be ignored as a de minimus amount of work that did not
need to be paid. In this case, the employees won the case and the
employer was forced to pay overtime and other penalties.
That employer possibly could have avoided overtime liability by
allowing the employees to take the company truck home at night, and
drive it from home to the first jobsite in the morning. If the
employer had offered the option, the employees' commute time
between home and work would have been exempt from minimum wage and
overtime requirements by the Portal-to-Portal Act. The
employer didn't do that because it didn't want to worry about
whether the employees would follow the rules against personal use,
and because it felt the trucks and tools were safest in their
secure yard.
Service companies should learn from these examples. Offering the
employees a voluntary choice between getting themselves to the
jobsite or hitching a free ride on the company truck may help
employees save money, and should not require the company to pay
wages for the travel time. Also, the employer is not required to
pay for the commute time of an employee that is allowed to take
home the company truck and use it for the commute to and from the
jobsite. However, if the employee is required to come to the yard
or office before going to the jobsite, the employer should pay for
the time spent transporting tools and necessary materials between
the yard and the jobsite, and should be paying for time shutting
employees between jobsites during the workday. The liability for
errors is significant, especially because attorney fees are a
mandatory award for a successful wage and hour claim under the Fair
Labor Standards Act.
About the author: Adam Kunz is a litigation
attorney at the Phoenix law firm of Jaburg Wilk. He assists
business clients with their employment, intellectual property and
business issues. Additionally, Adam has helped numerous
Arizona based pest control, landscape and service companies with
their regulatory requirements and business guidance. He can
be reached at 602.248.1014 or ask@jaburgwilk.com.
This article is not intended to provide legal
advice. Always consult an attorney for legal advice for your
particular situation.
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