LEGISLATION PROPOSED TO PROTECT EMPLOYERS FROM UNINTENDED LIABILITY FOR EMPLOYEE COMMUTE TIME

Date: February 28th, 2011
Categories: Employment, Legislation

In employment lawsuits it is rare for Washington courts to reach a result that makes both employers and employees worse off, but that happened several years ago in a case over compensation for commute time. In 2007 the Washington Supreme Court ruled that an employer who furnished company vehicles to employees, and allowed the employees to commute in those vehicles, was required to pay for their commute time. The ruling, in a case known as Stevens v. Brinks, imposed retroactive liability for commute time going back several years.

Although the ruling was an obvious windfall to the handful of employees who won in that particular case, in the construction community it was unwelcome on both the labor and management sides of the industry. Contractors frequently provide company vehicles for full-time use to superintendents and other non-exempt employees. These vehicles aren”t just a substantial perk: They represent a prominent acknowledgment of the employee”s achievement in the company and in the industry.

But the Supreme Court”s 2007 decision in the Brinks case caused many construction firms to rethink their company vehicle policies. Some employers restricted use of company vehicles. Other employers pulled their vehicles back from employees entirely, fearing the prospect of crippling liability for overtime pay that no one ever imagined might be owing.

Now a bipartisan group of legislators is sponsoring a bill to fix the problem created by the Brinks decision. Because the Supreme Court had ruled that overtime pay was owing as a result mobile.ae.org of loosely-defined terms in Washington”s wage laws, the proposed legislation clarifies what those laws do – and don”t – require.

At the heart of the Brinks case was the Washington regulation requiring employees to be paid at their regular rate (or time and a half for overtime) for all “hours worked.” The regulation has no definition of “hours worked,” except that it means time “on duty” at a “prescribed workplace.” Lacking anything further as guidance, the Supreme Court ruled that where the employer had exercised control over the employee”s use of the company vehicle during commute time (by, for example, imposing policies for safe operation of the vehicle and occasionally contacting the employee about jobsite assignments during the commute), the employees in Brinks were “on duty” during their commute. And because the employees routinely carried necessary tools and supplies in their company trucks, and performed routine paperwork in the vehicles while working, the Supreme Court ruled the vehicles were a “prescribed workplace.” Consequently, the Supreme Court declared that the employer in Brinks had to pay for all hours its employees had spent commuting in company vehicles.

In order to clarify the law so that employers can avoid unintended liability for commute time, Washington representatives Holmquist (R), Kastama (D), King (R) and Shin (D) are sponsoring Senate Bill 5624. If enacted, that bill will add an important restriction to the definition of employment in Washington law:

“employ” and “work” do not mean or include the use of an employer”s vehicle for travel by an employee and activities performed by an employee that are incidental to the use of such a vehicle for commuting, when the use of that vehicle for travel is within the normal commuting area for the employer”s business or establishment and the use of the employer”s vehicle is subject to an agreement on the part of the employer and the employee or representative of the employee

This clarification to the law would let employers protect themselves against unintended liability to pay for time employees commute to and from home in company vehicles, and make it easier for employers to furnish company vehicles when mutually beneficial to the employer and its workforce.