Employees must be paid for their pre-shift or post-shift activities, if those activities are integral and indispensable to the performance of their principal jobs. That can stretch a workday and possibly require you to pay for employees’ commuting time.
But not all pre-shift or post-shift work is the same. Employees who have flexibility to decide when to perform those tasks don’t have to be paid, a federal appeals court has ruled. (Kuebel v. Black & Decker, Inc., No. 10-2273-cv, 2nd Cir., 2011)
The long and winding road
A field employee was assigned to particular stores in a specified territory. He didn’t report to any central office. His commuting time ranged from 20 minutes to three hours, but, under company policy, he was paid after the first 60 minutes of any commute.
He was required to perform a variety of tasks at home, including uploading data to the company’s server from a company-issued hand-held device, reading and responding to company emails, checking voice mail, printing and reviewing sales reports and organizing sales displays.
The company estimated that it should take field employees 30 minutes to perform those tasks, but when they performed them was within their discretion. The employee said that he spent 15 minutes in the morning and at least as much time at night on the activities.
He sued, claiming he should have been paid for all of his commuting time. Employee: Performing this work triggered the beginning of his workday, so commuting time was compensable. Company’s defense: No compensation was necessary because the activities weren’t indispensable to the employee’s job. A federal trial court ruled in the company’s favor and the employee appealed.
Commuting time is still commuting time
A federal appeals court affirmed the trial court’s decision. Appeals court: Even if the employee’s at-home activities were integral and indispensable to his principal job, they don’t convert all of his commuting time into compensable working time. The employee could, for example, read an email and then take his children to school, the court noted. The fact that he performed some administrative tasks at home, on his own schedule, didn’t make his commute time compensable any more than it made his sleep time or his dinner time compensable, the court concluded.
THE TAKEAWAY: The employee used the continuous workday rule to bolster his case. Under this rule, once an employee’s workday begins, then all the time spent after that, including travel time, is compensable. The court, on the other hand, placed a lot of weight on the fact that he could perform the tasks whenever he wanted.
Bottom line: Unless it’s absolutely necessary, don’t require employees to perform specific tasks at certain times. Review your procedures with an eye to giving employees who work out of the office as much discretion as possible. Make tasks that must be performed at specific times as easy as possible. Employees who spend one minute uploading data to the company’s server, for example, would have a hard time explaining to a court why that one minute should be treated as compensable.
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