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Simply because an employee performs work at home does not mean that under the “continuous workday” rule all time spent commuting to and from work is compensable, the U.S. Court of Appeals for the Second Circuit, in New York, has held. The Second Circuit has jurisdiction over Connecticut, New York, and Vermont.
With the proliferation of iPhones, BlackBerries, and other PDAs, employees now can work anywhere. But the use of these devices has raised issues regarding when the workday begins and ends, and whether using these devices at home affects the compensability of time spent commuting.
“Continuous Workday” Rule
Under the “continuous workday” rule, time spent traveling after the workday has begun is compensable. For example, if an employee reports to work at a central office, completes necessary paperwork, then immediately drives to his or her first work assignment, the time spent traveling is compensable work time, as is time spent traveling between customer locations. However, ordinary time spent commuting from home to and from work is not compensable.
What happens when the employee, who works from a home office, completes work at home (e.g., reviewing and responding to e-mail) before beginning the commute to the first job assignment or after commuting home? Has the workday begun and is the time spent commuting to the first job site or from the last job site, therefore, compensable? No, says the Second Circuit in Kubuel v. Black & Decker, No. 10-2273 (May 5, 2011), adding clarity to this gray area.
Greg Kubuel was employed as a “Retail Specialist” for Black & Decker. He was responsible for merchandising and marketing B&D’s products at six Home Depot stores located in his territory. The stores were 20 minutes to three hours from his home by car. He did not report to a central office, instead, working from a home office and commuting to the various stores from home.
Kubuel was issued a PDA by his employer and was required to record the time he entered and exited a store. He must report that information electronically by synchronizing his PDA with B&D’s server, which he did from home by plugging it into a cradle attached to his home computer. Significantly, there was no particular time that he had to synch his PDA, and it took less than a minute to complete this task. However, he also read and responded to company e-mail, checked voicemail, reviewed sales reports, and prepared for his store visits. B&D required employees to record time spent performing these activities, and it paid for the time spent completing them.
B&D also paid for some time spent commuting. B&D’s commuting policy provided that time spent traveling in excess of 60 miles (or, in some cases, in excess of 60 minutes) was compensable, but not commuting time of less than 60 miles or 60 minutes.
Kubuel sued B&D, arguing that all time spent commuting to the first and from the last work assignment of the day (not simply time in excess of 60 minutes) was compensable time under the Fair Labor Standards Act and New York Labor Law under the “continuous workday” rule. He claimed that his workday began when he checked e-mail, voicemail, and performed other tasks before he left home and that the workday did not end until he completed work-related tasks after he returned home at the end of the day.
The District Court entered summary judgment in favor of B&D regarding the commute-time claim, finding that the tasks performed were not “integral and indispensible” to Kubuel’s principal job duties, and thus, did not extend the workday to include the morning and evening commutes. The court later granted summary judgment on his claims that he worked off-the-clock.
Appellate Court Decision
The Second Circuit affirmed the dismissal of Kubuel’s commute-time claims, though on grounds different from those relied upon by the District Court. The appellate court held that even if the work performed at home was integral and indispensible to Kubuel’s principal activities (which, under U.S. Supreme Court precedent, would render the time compensable), this did not mean that the commute time was compensable.
The Court first noted that the general rule “is and always has been” that under the FLSA, ordinary home-to-job-site travel is not compensable, which the Department of Labor regulations have reflected for over 50 years. It then held that because Kubuel was not required to perform the administrative tasks immediately before leaving home, or immediately after returning home, instead, he was given flexibility in completing these tasks, the time spent commuting after the tasks were performed “does not make his commute time compensable any more than it makes his sleep time or his dinner time compensable.” The Court explained that Kubuel, for example, could have woken up early to complete the administrative tasks, then gone to the gym or taken his kids to school before beginning his commute to the first assignment. If his performance of administrative tasks at home began the continuous workday, these activities also would be compensable. The fact that Kubuel may have chosen to perform the tasks immediately before and after his commute did not mean that B&D had to pay for it, the Court held.
The Court, however, reversed the grant of summary judgment regarding Kubuel’s off-the-clock claim, finding questions of fact existed regarding whether Kubuel, who admitted to falsely shaving time from his timesheets to reflect only 40 hours of work a week, was following instructions given by his supervisors. Because the Court was deciding a motion for summary judgment, it had to accept the facts as alleged by the plaintiff. “[W]here the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets,” the Court held.
What Employers Should Do
Employers should make clear to employees who work from home, whether they are reviewing and responding to e-mail, voicemail, or performing other tasks, that this work need not be performed at any specific time, particularly immediately before or after their commute home. Of course, any time spent actually working (subject perhaps to the de minimis rule) must be paid. Further, employers should make clear that any instruction by a supervisor not to record hours worked should be disregarded and reported to management or human resources immediately.
Jackson Lewis attorneys are available to answer inquiries regarding this and other workplace developments.
Courtesy of Jackson Lewis.
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