When Traveling Employees Are Due Compensation (Or Not)

When Traveling Employees Are Due Compensation (Or Not) Welcome to Part 2 of our series on the Department of Labor’s three new opinion letters. Last week, we looked at the new opinion letter on FMLA intermittent breaks. If you missed that post, you can catch up here. Next up is the travel time letter.

The Facts

A crane repair company asked the DOL to clarify when it must pay its technicians for their travel time and asked for guidance on three scenarios. The letter examines all three scenarios and explains why the company must pay the technicians for that time (or not).

Scenario 1

An hourly technician travels on a Sunday by plane to an out-of-town training class and attends the class from Monday to Friday. The technician then flies back home on Friday or, if a Friday flight is unavailable, on Saturday.

The DOL explains that travel time is compensable work time when it cuts across the employee’s regular workday. Travel on public transportation outside of regular work hours, however, does not constitute worktime and thus does not require compensation. (The same goes for an employee who turns down a plane ticket and opts to drive instead.)

The letter also addresses what to do if the employee does not have a “recognized workday.” If the employee has an inconsistent schedule, the employer should try to ascertain the employee’s average work hours to determine if and when travel time must be compensated. The DOL recommends reviewing employee time records for average start and end times and paying the employee for travel time within that window.

Lastly, the DOL clarifies that the traveling employee is not due compensation for his commute between the training site and the hotel in which he stays during his trip. As far as the FLSA is concerned, this is no different from an employee commuting between work and home during a regular day.

Scenarios 2 & 3

In the second and third scenarios, an hourly technician travels in a company-owned vehicle from home either to the office to pick up an itinerary (Scenario 2) or to multiple customer locations (Scenario 3), after which he travels to and from other customer locations throughout the day. Depending on where the technician lives, the home-to-office commute can range from 15 minutes to one hour or more.

The DOL notes that the same principles apply to Scenarios 2 & 3 that applied in Scenario 1. A technician’s travel time from his home to his first stop of the day, whether it’s the office or a customer location, is generally not compensable other than in extraordinary circumstances (i.e., a customer site several hours away). Once the technician arrives at the first stop, however, he or she is on the clock and must be compensated for travel between stops throughout the workday.

If you have employees who travel during the workday or are sending an employee out of town for business and have questions, ask your lawyer for clarification on the front end about whether they are due compensation. Tune in next week for the third and final opinion letter.

FMLA-Covered 15-Minute Rest Breaks Are Not Compensable

Last July, we posted on the U.S. Department of Labor’s announcement that it was reviving its practice of publishing opinion letters as guidance on wage and hour issues, which the Obama Administration halted in 2010. After leaving us all on pins and needles for months, the DOL has finally issued three new opinion letters. The letters address the following topics (drum roll, please…): 15-minute rest breaks for serious health conditions; employee travel time; and lump-sum payments to employees. Below is a summary of the 15-minute break letter; we will post separately on the other two topics.

The Scenario

Reunited and It Feels So Good—The DOL’s Opinion Letters Are Back (Part 1 of 3)Letter FLSA2018-19 explains that due to a serious health condition, a non-exempt employee can take eight 15-minute rest breaks per workday as intermittent leave under the Family and Medical Leave Act. The employee works an eight-hour shift but, due to the breaks, is only performing six hours of work. The employer wants to know whether these breaks must be compensated under the Fair Labor Standards Act.

The Guidance

The letter recognizes that a rest break up to 20 minutes in length is ordinarily compensable under the FLSA because it primarily benefits the employer. In certain circumstances, however, courts have held that frequent accommodation breaks primarily benefit the employee and do not require compensation. With that in mind, the DOL opines that the employee is not due compensation for his or her rest breaks.

Lastly, the letter emphasizes that employees who take FMLA-protected breaks must also receive as many compensable rest breaks as their coworkers. So, if the employee’s coworkers receive two paid 15-minute breaks during an eight-hour shift, the employee is entitled to 10 breaks total, the first two paid and the remainder unpaid.

Takeaways

This opinion letter is an important reminder of the intersections between the various employment statutes. Depending on the employee’s serious health condition, issues under the Americans with Disabilities Act and the applicable state workers’ compensation statute could also come into play. Call your lawyer if you think you need help navigating your obligations under one statute in a way that won’t run afoul of another. And don’t forget that we can now ask DOL for an opinion letter.

Employee Handbook Leads to Dismissal of FMLA Claims against Tennessee EmployerMost, if not all, employers provide their employees with handbooks that explain the policies and procedures that govern the employment relationship. Because this practice is standard, many employers likely forget how critical it is to have clear, well-known policies that are consistently followed. The recent decision in Everson v. SCI Tennessee Funeral Services, LLC reminds employers of the significance of employee handbooks and how they can prevent extensive litigation.

Background

Ommer Everson worked as a funeral director for SCI Tennessee Funeral Services (SCI). Although Everson was diagnosed with Meniere’s disease during his employment, it did not affect his work until he needed some time off for outpatient ear procedures. Before his procedure in 2010, Everson requested a week to 10 days off, which his supervisor granted. In 2014, Everson requested an afternoon off for another procedure and his supervisor again granted the request. On January 9, 2015, he requested a week off for a third procedure and his supervisor responded that it was fine—“whatever time you need.”

However, Everson never took that week off because he was terminated two days later for violating SCI’s refrigeration policy. Specifically, SCI determined that Everson left an unembalmed body overnight without refrigeration.

Everson sued SCI alleging violations of the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA). Regarding the FMLA, Everson specifically alleged that SCI had retaliated against him for requesting FMLA leave and interfered with the exercise of his rights.

Middle District of Tennessee Grants Summary Judgment to SCI on FMLA Claims

SCI moved for summary judgment, arguing that it did not interfere with Everson’s FMLA rights because Everson failed to follow SCI’s notice requirements in requesting leave. SCI’s employee handbook outlined the procedure—employees needing leave were to contact the SCI Leave and Disability Center. In response, Everson asserted that the FMLA did not require him to invoke the FMLA by name. Providing notice to his supervisor for a procedure related to Meniere’s disease was sufficient to notify SCI that Everson was invoking FMLA protection.

Siding with SCI, the Middle District of Tennessee granted summary judgment, holding that the 2009 amendment to 29 C.F.R. § 825.302(d) “explicitly permit[ted] employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” The court explained that despite the fact that Everson had received, read, and signed SCI’s employee handbook, he never requested FMLA leave or asked anyone at SCI for FMLA leave. He also did not identify any unusual circumstances that would have prevented him from complying with SCI’s notice requirement. Because Everson failed to comply with SCI’s policy for requesting FMLA leave, the court ruled that he could not establish a prima facie case for FMLA interference. Additionally, the court ruled that Everson’s claim of FMLA retaliation failed because his anticipated leave was not a protected activity under the FMLA. Since SCI did not have proper notice of Everson’s intent to take FMLA leave, Everson never actually engaged in an activity protected by the FMLA.

The court went on to deny summary judgment to SCI regarding Everson’s ADA claim, but that is a much longer story for a different post.

Takeaways

Never forget the power of the employee handbook and other well-crafted policies. In this case, the employer set out a clear path to request FMLA leave, and the court determined that the plaintiff did not use it. To get the most from those policies, you need to be sure that you can prove that your employees know about them. Here are some ideas:

  • Make sure that every employee receives a copy of your employee handbook and acknowledges in writing that they have both read the handbook and addressed any questions or concerns that they may have.
  • For policies regarding employment laws that may be more complex (g., requesting FMLA leave, requesting reasonable accommodations, requesting or reporting overtime, etc.), consider having employees read, acknowledge, and sign a separate document in addition to the handbook acknowledgement to ensure that they understand their responsibilities, as well as your responsibilities as their employer.
  • Send periodic messages or post reminders about more complicated policies—such as requesting FMLA leave or reporting harassment. This will give you another way to prove that employees understand how the policies work.