On the Road Again: Determining when Travel Time is Paid Time

By: Attorney Mindy K. Dale– Weld Riley, S.C.

Whether time spent in travel is compensable time depends on the kind of travel involved and how the travel time is treated under state and/or federal law.  This means that most employers in Wisconsin must comply with both the federal Fair Labor Standards Act (FLSA) and state statutes and regulations.  And while state and federal regulations often parallel each other, how state and federal courts have interpreted the provisions of each may differ.  Case in point is Kieninger and Meek v. Crown Equipment Corporation d/ba/ Crown Lift Trucks, LLC, decided by the Wisconsin Supreme Court on March 20, 2019.

In an ordinary situation where an employee commutes between home and a work site, the employee is not entitled to additional compensation for the commuting time.  This is true whether the employee works at a fixed location or at different job sites.  Both the federal regulation,  29 C.F.R. § 785.35 and the state regulation, Wis. Admin. Code § DWD 272.12(2)(g)1. contain identical language. 

However, travel that is part of a day’s work is compensable time.  For instance, if an employee travels from job site to job site during the day or reports to a meeting place to receive instructions or pick up assignments and then travels to the place of work, the employee must be compensated for all of the travel time. Again, both the federal, 29 C.F.R. § 785.38, and the state, Wis. Admin. Code § DWD 272.12(2)(g) 5. regulations contain identical language.  The regulations go on to clarify that at the end of the day if an employee leaves a job site and goes home instead of returning to the employer’s premises, the travel from the job site is “home-to-work travel” and is not hours worked.

In Crown, the sole issue was whether under Wisconsin law an employer must pay an employee for the time they spend driving a company-provided van between their homes and their assigned job sites in their service area.  The vans contained the tools, equipment and supplies necessary for the employees to perform their jobs of repairing and servicing forklifts.  The employees claimed that transporting these materials was a task integral to their principal job duties and so they should be compensated from the time they leave home in the morning until they return at night.

The circuit court had interpreted Wisconsin law consistent with the federal Employee Commuting Flexibility Act (“ECFA”) in dismissing the employee’s claims.  The Wisconsin Court of Appeals disagreed, reviving the employee’s claims and remanding the case for further briefing and proceedings.  Crown appealed.

The Wisconsin Supreme Court agreed that the ECFA was not controlling, but rejected the application of a decision by a pre-ECFA federal district court, which found, under nearly identical facts, that the commuting time was compensable.  While the ECFA was enacted in 1996, the federal regulation at issue, 29 C.F.R. § 785.38, was adopted in 1961, and its Wisconsin counterpart was enacted in 1978.  The Court noted that while federal cases are often “persuasive authority,” they are not controlling and that the federal district court did not take into account the regulatory materials existing at the time in arriving at its decision.       

The Court also looked at the matter from a pragmatic approach.  Carrying the employee’s argument (and the pre-ECFA decision) to its logical extreme would transform virtually every commute into compensable time: employees often take laptops or files home after work and each time an employee commutes they are transporting their own physical and mental resources to the work site. 

Therefore, the Court concluded that under Wisconsin law, the employees in Crown were not entitled to compensation for driving their tool-laden, company-provided vans for home-to-work travel.  While the Wisconsin Supreme Court’s decision in Crown ultimately resulted in a parallel between state and federal law, the Court made clear that a Congressional act post-dating Wisconsin’s labor regulations will not retroactively change their meaning.  Employers also should be mindful that under the ECFA, an employer and employee must have an understanding beforehand that travel time within his or her normal commuting area in an employer-provided vehicle will not be compensable.  

Note that this decision did not change the compensability of other special rules that apply to travel.  For example:

Home to Work on a Special One Day Assignment in Another City.  An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day.  The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.  The federal regulation, 29 CFR § 785.37 and state regulation,  Wis. Admin. Code  § DWD 272.12(2)(g) 4. are similar, but the language is not identical.  

Travel Away from Home Community.  Travel that keeps an employee away from home overnight is travel away from home.  Travel away from home is clearly work time when it cuts across the employee’s workday.  The time is not only hours worked on regular working days during normal working hours, but also during corresponding hours on non-working days.  As an enforcement policy, the U.S. Department of Labor will not consider as work time the time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus or automobile.  29 CFR § 785.39  

However, Wisconsin regulations provide that all travel time away from the home community for business purposes that occurs for the benefit of the employer is considered hours worked. Wis. Admin. Code  §  DWD 272.12(g)6.