Upholding the trial court’s dismissal of an FLSA collective action, the Fifth Circuit Court of Appeals reiterated that an employee’s commute time is compensable only when the commute is “integral and indispensable” to the employee’s job duties. Bennett v. McDermott Int’l, Inc., 2021 U.S. App. Lexis 10948 (5th Cir. Apr. 16, 2021). The Fifth Circuit has jurisdiction over the federal courts in Texas, Mississippi, and Louisiana.
The plaintiff-employees and their putative class members were employed under a contract related to a natural gas liquefaction facility in Hackberry, Louisiana. Because of the remote location of the facility, they were required by the company to travel to designated park-and-ride sites and then ride employer-provided buses to and from the facility.
The plaintiffs filed suit, alleging they were unlawfully denied both their regular pay (under state law) and overtime pay (under the Fair Labor Standards Act) for the commute time, which could take up to several hours per day. The district court granted motions to dismiss filed by the defendants, holding that the FLSA’s Portal-to-Portal Act, as amended by the Employee Commuting Flexibility Act, barred their claims and that the FLSA also preempted their state law claims.
The employees appealed and the Fifth Circuit affirmed the dismissal of their FLSA claims. The Court of Appeals noted that employers are only required to pay for work-related activities that take place before and after hours if they are “an integral part of” and “essential to the principal activities of the employees.” Noting that while commuting is, is some sense, necessary to most jobs, a commute is compensable only if it is tied to the “principal activity” of the work the employee is hired to perform. Otherwise, the Fifth Circuit added, if the statute was read as basing compensability on the employer’s principal activities (as the plaintiffs asserted), “there [would be] no limiting principle. Everyone would be entitled to commute-time compensation because an employee’s commute is always necessary to the employer’s work getting done.”
The Court of Appeals also rejected the plaintiff’s argument that the inconvenience of, and time required to participate in, the company’s mandatory commuting process rendered the time compensable. “The line Congress chose to draw was whether the commute involved work – work specific to what the employee is employed to do,” not whether the commute was long or inconvenient, the Fifth Circuit concluded. Moreover, the plaintiffs’ general allegation, that “at times” they were required to discuss job duties or accept work calls while commuting, was insufficient to support a claim that the commute time was compensable. However, the Fifth Circuit remanded on this issue, finding that the district court should have given the plaintiffs an opportunity to amend their complaint to set forth enough detail to support the contention that on occasion the commute may have involved compensable time for work-related calls or conversations.
Finally, the Fifth Circuit dismissed the plaintiffs’ claims under the Louisiana Wage Payment Act (LWPA), which provides employee protections for wages “due under the terms of employment.” The Court of Appeals noted that the employer never agreed to pay for the travel time and that the employer had no policies or procedures that would have required payment. Thus, no “terms of employment” existed under which the state law claim to such wages could be based.
If you have any questions about this decision, commuting under the FLSA, or any other wage and hour issue, please contact a Jackson Lewis attorney.