November 18, 2011

 

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Comments

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Ken

Ordinarily, the law does not require that employees be paid for commute time. However, California law requires that employees be compensated for all time during which an employee is subject to the control of the employer. If, during the commute time, the employee is really "subject to the control of the employer" then the employee must be paid for this commute time.

 

"What is travel time and when it is considered hours worked?

Introductory statement to the policy:

This policy is designed to provide general information in regard to the current opinions of the Department of Labor on the subject matter covered. This policy is intended as a guide in the interpretation and application of the relevant statutes, regulations, and policies, and may not be applicable to all situations.

 

This document is effective as of the date of print and supersedes all previous interpretations and guidelines. Changes may occur after the date of print due to subsequent legislation, administrative rule, judicial proceedings, or need for clarification. This document will remain in effect until rescinded, modified, or withdrawn by the Director or his or her designee. This policy is not intended to address or cover all employee travel time issues. Instead, it is limited to the particular issues raised regarding whether time spent driving a company-provided vehicle between home and the first or last job site of the day constitutes compensable 'hours worked.'

Whether time spent driving in a company-provided vehicle constitutes paid work time depends on whether the drive time is considered 'hours worked.'

Whether travel or commute time is compensable depends on the specific facts and circumstances of each individual employee, employer, and work week. If the travel or commute time is considered 'hours worked' then it is compensable and the employee must be paid for this time. These statutory and regulatory requirements cannot be waived through a collective bargaining agreement or other agreement.

'Hours worked' means all hours when an employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed workplace.

There are three elements to the definition of hours worked:

1- An employee is authorized or required by the employer,

2- to be on duty,

3- On the employer's premises or at a prescribed workplace.

If any of the three elements is not satisfied, then the time spent driving in a company-provided vehicle is not considered 'hours worked.'

However, the element must be met for 'hours worked' under the law.

Time spent driving a company-provided vehicle during an employee's ordinary travel, when the employee is not on duty and performs no work while driving between home and the first or last job site of the day, is not considered hours worked.

Time spent driving a company-provided vehicle from the employer's place of business to the job site is considered hours worked. Time spent riding in a company-provided vehicle from the employer's place of business to the job site is not considered hours worked when an employee voluntarily reports to the employer's location merely to obtain a ride as a passenger for the employee's convenience, is not on duty, and performs no work. Time spent driving or riding as a passenger from job site to job site is considered hours worked.

 

Factors to consider in determining IF AN EMPLOYEE IS 'on duty' when driving a company-provided vehicle between home and work.

To determine if the employee is on duty, you must evaluate the extent to which the employer restricts the employee's personal activities and controls the employee's time. This includes an analysis of the frequency and extent of such restrictions and control. Following is a non-exclusive list of factors to consider when making a determination if an employee is 'on duty.' There may be additional relevant factors that the Supreme Court or L&I have not considered. All factors must be considered and weighed in combination with each other. The mere presence or absence of any single factor is not determinative.

1. The extent to which the employee is free to make personal stops and engage in personal activities during the drive time between home and the first or last job site of the day, or whether the vehicle may only be used for company business.

2. The extent to which the employee is required to respond to work related calls or to be redirected while en route.

3. Whether the employee is required to maintain contact with the employer.

4. The extent to which the employee receives assignments at home and must spend time writing down the assignments and mapping the route to reach the first job site before beginning the drive.

 

Factors to consider in determining if an employee is 'on the employer's premises or at a prescribed work place' when driving a company-provided vehicle between home and work.

 

To determine if a company-provided vehicle constitutes a 'prescribed work place,' you must evaluate whether driving the particular vehicle is an integral part of the work performed by the employee. Following is a non-exclusive list of factors to consider when making a determination if an employee is 'on the employer's premises or at a prescribed work place.

 

They must be considered and weighed in combination with each other. The mere presence or absence of any single factor is not determinative.

1. Whether the nature of the business requires the employee to drive a particular vehicle provided by the employer to carry necessary non personal tools and equipment to the work site.

2. The extent to which the company-provided vehicle serves as a location where the employer authorizes or requires the employee to complete business required paperwork or load materials or equipment.

3. The extent to which the employer requires the employee to ensure that the vehicle is kept clean, organized, safe, and serviced.

9. What constitutes preparatory and concluding activities and when is this time considered 'hours worked'?

Preparatory and concluding activities are those activities that are considered integral or necessary to the performance of the job. Those duties performed in readiness and/or completion of the job shall be considered hours worked. When an employee does not have control over when and where such activities can be made, such activities shall be considered as hours worked

 

They must be considered and weighed in combination with each other. The mere presence or absence of any single factor is not determinative.

1. Whether the nature of the business requires the employee to drive a particular vehicle provided by the employer to carry necessary non personal tools and equipment to the work site.

2. The extent to which the company-provided vehicle serves as a location where the employer authorizes or requires the employee to complete business required paperwork or load materials or equipment.

3. The extent to which the employer requires the employee to ensure that the vehicle is kept clean, organized, safe, and serviced."

RICHARD JACKSON

FOREVER SECURE PROTECTION SERVICES

CA

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Ken,

Workers Comp varies by state. Our office is in Maryland. Several years ago, one of our employees lived in Delaware, and commuted to work in a company vehicle. After clocking out and on his way home one day after work, he was tragically killed in a car accident. The Workers Comp carrier (who will remain nameless) tried to deny his family their benefits. We fought the carrier on their behalf and won. According to the experts, in Delaware, where the accident occurred, employees in company vehicles on their way to/from work, are covered. Had the accident occurred in Maryland, Workers Comp would not have been involved.

Ron Boltz

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Comment on salary reduction

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Ken,

Good points on the employment law issue. As an in-house counsel, I had the unfortunate duty of guiding my company through a salary reduction and reduction-in-force. There are some issues to be aware of under federal and state laws when reducing pay and/or laying people off including the following:

· For exempt employees, make sure they are paid at least $455.

o Be sure that such reductions are bona fide predetermined regular salary reductions, not related to the quantity or quality of work performed and not used as a device to evade the salary basis requirements.

o Deductions from predetermined pay occasioned by day-to-day or week-to-week determinations of the operating requirements of the business constitute impermissible deductions from the predetermined salary and would result in loss of the exemption.

· Be sure that non-exempt employees are paid the higher of federal and state minimum wage rates plus any weekly overtime. (State laws may govern day-to-day overtime.)

· Determine if you have any workers are on prevailing wage rate jobs, which might preclude a reduction in pay.

· Make reductions fairly.

o The percentage should be the same for everyone.

o Don't base reductions on age, sex, race, religion, or any other protected class.

o If employees chooses to take the reduction as effective terminations, seek legal counsel on whether the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-34 impacts your actions.

· It's always advisable to seek legal counsel based on specific facts in a specific jurisdiction BEFORE acting.

Great forum! I would love to meet up with you. Perhaps we can arrange some time around one of your speaking engagements. In the meantime, please let me know if I can be of service to your or your clients in Massachusetts.

Best,

David J. Coughlin, Esq., CPP

djcoughlin@comcast.net

http://www.linkedin.com/in/davidjcoughlin

(781) 572-5050 (voice)

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Response

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Thanks, and hopefully those in Massachusetts will take you up on your generous offer. Your participation in this forum is appreciated. Employment law is one of those special areas which most attorneys are not familiar. In our office my daughter Jennifer Kirschenbaum, Esq., heads up the transactional department which includes a sub specialty in employment law. She can be reached at 516 747 6700 ext 302.