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Travel Time Kentucky

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  • Travel Time Kentucky

    We are a service company that provides some of our technicians with take home vehicles (particularly those that live a farther distance away and their routes are close to their homes). I have a question about travel time. After much research, I was able to ascertain that we do not need to pay them for time traveled from their home to their first stop (this is considered a preliminary activity secondary to the principal activity). I verified that is the case even though we do provide them the vehicle, and even though they are driving to a different site as opposed to a fixed location.
    My question is this. My employer has been making some of this time compensatory. For instance, if an employee would normally drive 15 minutes to get to work, but they leave their home and go to their stop and it takes them 45 minutes, my employer was paying them for the difference of 30 minutes. Basically, I found that while it was generous, it was unnecessary and has now become an administrative/payroll nightmare as we gain more employees. I would like to discontinue this practice, but there is a ruling from the DOL that states, "The mere fact that the employer provides the employee with transportation does not convert such travel time to a principal activity. However, if there is a custom, contract or practice providing the employees regular daily travel between home and the workplace is compensable, such time will be so regarded under the provisions of section 4 of the Portal to Portal Act".

    Do you take this to mean that because we had paid it in the past, we are now required to forever pay this time?

    Attached is just one link that I found. I discovered that Kentucky does not vary from federal regs as far as travel time.

    http://www.law.cornell.edu/cfr/text/29/785.50
    Last edited by tdavid6; 08-27-2013, 08:26 AM.

  • #2
    You have several different issues.
    1. What does federal law (FLSA) require you to do?
    2. What does state law (if any) require you to do? You have already answered that part of the question by saying that KY follows federal law in this matter. I will have to take your word for that. Not my state.
    3. Lastly is there a Contract law or Common law requirement that the employers have some how created obligations that have would not otherwise exist in law.

    Lets address FLSA first. That is imposed law, meaning it does not matter what the employee and employer think, the feds require this. Under the Portal-to-Portal Act, commute time is rarely hours worked under FLSA. "Rarely" and "never" are not the same thing. HOWEVER the legal burden of proof is on the employee to prove that the commute time is one of the very rare exceptions supported by FLSA and related case law. One of the very rate exceptions is the "work vehicle" exception, which does not mean what many people try to claim it means. It does not mean any and all company vehicle. A Ford F-150 for example is almost never a work vehicle under FLSA, while a dump truck generally is. You need to get very specific about the exact nature of the vehicle and exactly why the employee had to take it home. FLSA is a 1938 law and the Portal-to-Portal Act was early 1940s. we have seventy years of court decisions addressing pretty much any argument any could make and almost all of the decisions say the commutes are not hours worked.

    While most states tend to follow FLSA in this matter, that is a little misleading. The absence of a state specific law does not mean the absence of state specific court decisions. For example, there is a decision specific to Washington State that a Ford 350 sufficently tricked out with permenant parts racks and other features turns what would otherwise by a "vechicle commonly used for commuting" into a "work vehicle". This WA specific decisions (Brinks Security) established a set of rules not currently recognized by the federal or other state courts. There are other non-WA decisions that disagreed with this set of facts establishing a "work vehicle".

    Contract law is easy (sort of). Talk to an attorney. Bring any paperwork which you feel rises to the level of an enforcable contract. Employment law is interently At Will, a Common Law principal. There is a ton of employment law with related court decisions going way back to English Common Law a thousand years ago which says that the conditions of employment can be altered on a go forward basis, absent a statutory law or valid contract to the contrary. Even if the employee used to do something, they can normally make changes on a go forward basis. Not with certainty, but again the legal burden of proof is on the employee to show that there is a legal impediment to this proposed change.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Thanks DAW

      All of our vehicles are vehicles of a type normally used for commuting (small trucks); the employees are able to use a normal route for commuting (not having to stop by weigh stations or avoid certain roads due to weight restrictions); the employee does not incur any additional cost for using our vehicle; and their home to work travel - in this case home to alternate job site - is within our normal commuting area. Also, they do little, if any, actual work while in our vehicle going to their first job (maybe just uploading their daily route on their GPS, which rises to the level of "incidental" since it is infrequent and such a short duration.

      That makes sense about the contract law. We have nothing written or otherwise that specifically states that we will make that time compensatory. It sounds like we may be okay to follow the law, as it was written, absent a contract to the contrary. I was afraid that "past behavior" may be looked at as a contract. I will talk to our attorney. Thanks for the response, DAW.

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      • #4
        It is always worth while to have clean well written policies. But there is such a massive Employment At Will bias in U.S. employment law, that the employer really has to work at it to take away their ability to make changes on a go forward basis. Smart employers make sure their policies do nothing to impede this, but even badly written policies generally fail to damage At Will employment. You always want to be very clear just what the law requires. If you want to do more, fine and dandy, but you want to avoid anything that risk At Will employment. Clauses that say we will never terminate anyone for any reason, or never change the compensation agreement for any reason. Smart employers use phrases such "we will minimally follow all laws unless the policy explictly says we will exceed them", and "policies are subject to change on a go forward basis".

        Specifically on commutes, federal DOL (FLSA) has one set of rules for hours worked, and IRS (IRC) has a different set of rules related to commute related expense reimburesment. (Not all so-called expense reimbursements are non-taxable).
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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