Employees who work at multiple work sites, such as cable installers and repair technicians, and often allege that their work requires them to perform certain tasks rendering what would otherwise be a non-compensable commute, compensable time. Judge Robert C. Chambers of the Southern District of West Virginia recently rejected one such attempt. Davis v. Skylink LTD., 2012 U.S. Dist. LEXIS 96766 (S.D. W. Va. July 12, 2012).
Plaintiffs in Davis originally alleged violations of the FLSA based on defendant Skylink’s “piece rate” overtime pay plan. These claims were disposed of on summary judgment in the Davis opinion, as the court found “no evidence of overtime worked but not compensated as a function of defendant’s use of the point system.
In an effort to breathe life back into their case, plaintiffs sought leave to amend the complaint to add a claim for uncompensated commute time under the FLSA’s Portal-to-Portal Act as amended by the Employee Computing Flexibility Act (ECFA). Plaintiffs sought leave to amend their complaint to claim that by “failing to pay plaintiffs for the time spent returning from the last jobsite of the day to their homes in an employer-owned vehicle,” Defendant violated the ECFA, which holds that such time is not compensable when: (1) the travel is within the employee’s normal commuting area; and (2) use of the vehicle is subject to an agreement between employee and employer. 29 U.S.C. § 254(a). Plaintiffs disputed that both that their commutes were within the normal commuting area and that they were subject to such an agreement.
As concerned the “normal commuting area,” Judge Chambers looked to recent commuting decisions from around the country and DOL guidance and concluded that the installers “were specifically aware of their assignment to particular service areas, bounded geographic areas in which they could be assigned to jobs. Plaintiffs have not demonstrated that they were assigned outside their service areas, such that the travel would not be an expected part of the job, nor have they alleged that their commutes were ‘extraordinary.’” Thus, the travel was within their normal commuting area. Rejecting Plaintiffs’ claim that the “agreement” had to be in a writing addressing specifically the commuting area, the Court found that the company’s general written policy regarding the company vehicle (and the absence of a specific writing requirement in the statute) compelled the conclusion that the agreement prong also was met.
Compensating field employees, especially those who drive company vehicles to or from their homes poses numerous legal and practical compliance challenges. Policies and practices must be based on a well-reasoned practical and legal analysis, taking into account operational needs, labor costs and applicable federal and state law.