© 2011 employer resource institute. all rights reserved. these materials may not be reproduced in...
TRANSCRIPT
© 2011 Employer Resource Institute. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission.
Monday, July 11, 2011Presented by the Employer Resource Institute
Work & Weather: Must-Have Policies on Absenteeism, Pay,
Telecommuting, and More
© 2011 Employer Resource Institute. All Rights Reserved
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© 2011 Employer Resource Institute. All Rights Reserved
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• This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.
About Our SpeakerKristine E. Kwong, Esq., is a partner in the Los Angeles office of the law firm Musick, Peeler & Garrett, LLP.
She advises and counsels clients on a wide range of business and employment issues, and her practice includes the drafting and updating of handbooks, policy manuals, codes of conduct, and severance packages. She regularly produces and presents training programs for employers on current issues of employment law, and she's a longtime popular speaker for BLR.
Kristine earned her law degree from the University of the Pacific (McGeorge School of Law).
www.mpglaw.com
Compensation Issues During Inclement Weather
Kristine E. Kwong, Esq.
Musick, Peeler & Garrett, LLP
Which Employees?
By and large,
pay issues apply primarily to
non-exempt employees
(i.e., workers who are NOT exempt from
overtime rules as determined by
federal and state exemption guidelines).
The Core Concept
Is travel time compensable?
The key issue in many instances is
whether an employee is engaged in travel
as part of the employer’s principal activity
or for the convenience of the employer.
If so, then that time is probably compensable
in many cases, because it’s “work time.”
“Work Time” Means …
• Work time is the time an employee "suffers or is permitted" to work.
• Work time is work not requested but suffered or permitted.
• Work time means all of the time that employees spend working for an employer.
• Work time is any time that employees spend that primarily benefits their employers - directly or indirectly.
• Work time includes time spent even if an employee is not doing work but is under the control of the employer.
Federal vs. California
When both federal and state laws existon a specific topic,
the law which is more favorable tothe employee will govern.
Federal (FLSA)
The standard: Whether the employee's time is spent primarily for the benefit of the employer.
Tennessee Coal, Iron & RR. Co. v Muscoda Local 123, 321 U.S. 590, 598 (1944)
And, in the absence of a contrary legislative expression, we cannot assume that Congress here was referring to work or employment other than as those words are commonly
used -- as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.
California
The standard: Whether the employee is subject to the control of the employer.
Morillion v. Royal Packing Co., 22 Cal.4th 575, 578 (2000)
The concept of “control” is narrower than federal standard.
Two Critical Court Cases
Armenta v. Osmose, Inc.
Compensable “hours worked” includes “nonproductive time” including travel time to remote jobsites, time spent loading equipment and supplies, time spent doing paperwork, and time spent maintaining the defendant's vehicles.
Two Critical Court Cases
Overton v. Walt Disney Co.
Time spent riding an employer-provided shuttle that transports employees from a parking lot to the work site is not compensable.
Because the employer did not require employees to take the shuttle, the time was not compensable travel time.
The Basic Rules
Basic Rule # 1:
The time employees spend commuting to and from
their regular place of work each day is not work time, so employers do not have to pay employees for this time.
The Basic Rules
Basic Rule # 2:
Work time does include time spent traveling to another location for a special assignment, substantial travel for an emergency outside the normal working hours, and time spent traveling during regular work hours as part of the employee’s principal job duties.
The Basic Rules
Basic Rule # 3:
If an employee reports to a central location to pick up equipment before proceeding to his or her assigned worksite, the time spent traveling to the central location is not work time. The time spent traveling to the assigned worksite is work time.
The Basic Rules
Basic Rule # 4:
Overnight travel or travel away from home is always work time under California law.
Under federal law, it is work time only when it cuts across the employee’s normal workday and/or requires the employee to work on weekends or days when he or she would not otherwise be required to work.
The Basic Rules
Basic Rule # 5:
Regular meal periods and time spent sleeping or in other leisure activities while traveling is not work time, and the employer does not have to pay the employee for this time.
Regular Commuting
Normal travel from home to work is not work time. This is true whether the employee works at a fixed location or at different jobsites (29 CFR 785.35) within a “reasonable commute zone.”
Commuting includes the time spent walking from the parking lot to the worksite.
If an employee has to report to a central meeting site to pick up equipment, supplies, or co-workers, or to get instructions, work time starts at that location.
After-Hours Commuting
When an employee has gone home after completing his or her day's work and is subsequently called out at after hours to travel a substantial distance to perform an unplanned job for one of the employer's customers, all time spent traveling is work time (29 CFR 785.36). Federal authorities have not addressed whether travel to and from the regular workplace in an emergency after hours is work time, but in California, it probably is.
Remember: Travel time wages paid by an employer for calling an employee back to work must be included in the calculations of hours worked for purposes of paying overtime.
Commuting inEmployer Vehicles
The Portal to Portal Act provides that travel between home and work in a company-owned vehicle is not paid work time as long as the travel is within the normal commuting area for the employer's business, and the use of the vehicle is subject to an agreement between the employer and the employee or the employee's representative (29 USC 254(a)). This exception also applies to time spent in activities incidental to the use of the vehicle for commuting (such as stopping for gas).
Commuting inEmployer Vehicles
Rutti v. Lojack
Commute in company vehicle may be compensable under California law.
Rutti was required to drive a Lojack utility van to the services stops. He was not allowed to use the van for personal errands, could not talk on the cell phone while driving, could not carry passengers, and could not deviate from the service route.
The 9th Circuit relied on Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000).
Special-Assignment Commuting
When an employee who regularly works at a fixed location in one city is given a special one-day assignment in another city, most of the time spent traveling is work time and must be compensated.
For example, an employee who works in San Francisco, CA, with regular work hours from 9 a.m. to 5 p.m., is given a special assignment in Sacramento, with instruction to leave San Francisco at 8 a.m. She arrives in Sacramento at 10:00, ready for work. The special assignment is completed at 3 p.m., and the employee arrives back in San Francisco at 5 p.m.
Special-Assignment Commuting
Such travel is not regarded as ordinary home-to-work travel and must be compensated. It was performed for the employer's benefit and at its special request to meet the needs of a particular and unusual assignment.
Therefore, it would qualify as an integral part of the principal activity that the employee was hired to perform.
All the time involved, however, need not be counted. Except for the special assignment, the employee would have had to report to her regular worksite. The travel time between her home and the railroad station need not be compensated. Also, the usual mealtime need not be paid (29 CFR 785.37).
Paid Commuting Time
Employers may agree to pay for ordinary commuting time. However, such time does not have to be counted as hours worked and is not subject to the minimum wage and overtime requirements.
Employer Policy – pay for commute time even during inclement weather.
Travel DuringRegular Work Hours
Time that an employee spends traveling as part of his or her principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions, pick up tools, or to perform other work there, the travel from the designated place to the workplace is part of the day's work and must be counted as hours worked regardless of contract or custom (29 CFR 785.38).
Travel DuringRegular Work Hours
For example, if an employee normally finishes his work on the premises at 5 p.m. and is sent to another job, which he finishes at 8 p.m., and is required to return to his employer's premises, arriving at 9 p.m., all of the time is work time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p.m. is home-to-work travel (if w/in the normal commute zone) -- not hours worked.
Employer must pay all travel time even if inclement weather makes travel time longer.
Overnight Travel
Travel that keeps an employee away from home overnight is designated as "travel away from home" by the Wage and Hour Division regulations (29 CFR 785.39). Travel away from home is paid work time under federal law when it "cuts across the employee's workday." This is because the employee is deemed to be simply substituting travel for other duties. The time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on nonwork days.
Overnight Travel
The California Wage and Hour Division, however, does not consider time spent traveling away from home outside of regular working hours as a passenger on a plane, train, boat, or bus as paid work time. CALIFORNIA LAW DESIGNATES ALL SUCH TIME AS HOURS WORKED.
Overnight Travel
Regular meal period time is not counted as work time. Sleep and off-duty time is not work time. Time spent travelling in planes, trains and automobiles, however, is work time under California law.
Federal law would only call the hours work if they cut across normal business hours, even though on non-working days.
Overnight Travel
Employees who are expected to use their personal vehicles for company business should be required to show proof of insurance coverage and to keep accurate and detailed records (time, date, duration, purpose).
If an employee is required to drive his or her car, the employer must count all time spent en route as hours worked regardless of whether or not the hours were normal working hours.
Work PerformedWhile Traveling
Any work that an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, car, boat, or airplane, or an employee who is required to ride as an assistant or helper, is working while riding.
But, the employer need not pay for meal periods or time when the employee is permitted to sleep in adequate facilities furnished by the employer (29 CFR 785.41).
Reporting Time
If employee is furnished with half of scheduled day’s work, the employee is paid the greater of:
1. Half of scheduled day’s work
2. Two hours’ pay
Reporting Time
If employee reports to work a second time in a scheduled workday and is furnished less than two hours work, employee must be paid for two hours pay.
Reporting Time
Exceptions to paying:
• Employer’s failure to supply work is outside of employer’s control such as an “Act of God”
• “Act of God” is not defined
Make-Up Time
• Exempt from overtime
• Need agreement to make-up time
• Make-up time must be within the same work week
Failure to Come to Work Due to Inclement Weather
• Non compensable
• Policy for compensation
• not counted as “hours worked”
• paid leave of absence
Failure to Report to Work Due to Inclement Weather
• Exempt employees
• no deductions allowed
• Non-Exempt employees
• deductions allowed
Inclement Weather Policy
• Although no compensation required, employer may implement a policy for compensation
• Allow telecommuting to diminish harsh financial consequences
• draft carefully worked policy to avoid overtime claims
Questions?
Kristine E. Kwong, Esq.
Musick, Peeler & Garrett, LLP
One Wilshire Boulevard, Suite 2000
Los Angeles, CA 90017
213.629.7977 (phone)
213.624.1376 (fax)
www.mpglaw.com
© 2011 Employer Resource Institute. All Rights Reserved
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