Washington Supreme Court Holds Technicians Must Be Paid for Their Time Commuting in Company Vehicles

December 28, 2007

A Washington Supreme Court ruling increases the risk that a non-exempt employee's commuting time will be deemed compensable when the employee drives a company vehicle between home and the job site. In Stevens v. Brink's Home Security, Inc., No. 79815-0 (Oct. 18, 2007), the Washington Supreme Court ruled that a class of plaintiff installation and service technicians must be paid for the time they spent driving a company vehicle between their homes and their first and last job sites of the work days. This fact-specific ruling has important implications for employers in the State of Washington who allow or required their non-exempt employees to drive company vehicles to and from their worksites. It also reminds employers of increased scrutiny by courts and government agencies as to when the compensable work day begins and ends. (See Supreme Court Decision Expands the Compensable Workday for Many Employersand Second Circuit Rejects Expanding Compensable Work Day to Include Duties Not Integral to Principal Work Activities.)

Field Work Requiring Vehicles and Equipment

The technicians involved in the Stevens case installed and serviced security systems in the homes of their employer's customers. They drove from one job to the next in company-supplied vehicles bearing the company's logo and equipped with the tools and supplies necessary for the job. Everyone agreed that the time spent driving between job sites was compensable, and the company paid for that time. The disagreement was whether the technicians also must be paid for the time they spent driving the company vehicles between their homes and the first and last jobs of the day.

Option 1: Commuting in a Personal Vehicle

The employer gave the technicians two commuting options. Under the first option, which was not contested, the technicians could pick up and drop off a company vehicle at a company office, using personal transportation to and from that office. If they chose this option, they were not paid for the time spent commuting between their homes and the office, but they were paid for the time they spent driving between the office and the first and last job sites.

Option 2: Commuting in a Company Vehicle

The dispute before the Washington Supreme Court concerned the second option, the "home dispatch program." Technicians could opt to take a company vehicle home and drive it directly between their homes and their first and last job sites without stopping at the company's office. Technicians in the home dispatch program received their job assignments at home, or through voice mail or handheld computers. The Court noted these technicians had to spend time at home writing down their assignments and mapping the best route before departing for the day. Technicians dispatched from home were required to remain available to their supervisors during their commuting time, so that they could be redirected to assist with other jobs or to answer service calls. They were not paid for the driving time between their homes and their first and last job sites, unless this time exceeded 45 minutes. (During most of the years at issue, the technicians were paid for drive time beyond 45 minutes.)

According to the Court, the technicians' use of the company vehicles was "strictly" controlled by their employer. More specifically, the vehicles could be used only for company business. The technicians could not carry alcohol in the vehicles or any passengers who were not company employees. "Unlike ordinary commuters," the Court noted, the technicians could not run personal errands or go shopping. In addition, they were required to wear their seat belts (which is also required by Washington law), as well as to refrain from parking "haphazardly" and to lock the vehicle at all times.

Commuting Time Held "Hours Worked"

The central issue was whether the technicians' driving time to and from their first and last jobs of the day constituted compensable "hours worked" under Washington's Minimum Wage Act ("WMWA"). The WMWA does not define "hours worked," but a regulation issued by the Washington Department of Labor and Industries states that "hours worked" means all hours where the employee is authorized or required to be on duty on the employer's premises or a prescribed work place. WAC 296-126-002(8).

The technicians argued that they should be paid for their drive time because it constituted "hours worked" under the WMWA. Based on its review of the facts, the Court agreed.

In reaching this conclusion, the Court examined whether the technicians were "on duty" at the "employer's premises" or a "prescribed workplace" within the meaning of WAC 296-126-002(8). According to the Court, the technicians were "on duty" because the employer prohibited the technicians from using the trucks for personal business, required the technicians to remain available to assist at other job sites while en route, and strictly controlled the drive time by prescribing rules about the carriage of passengers, parking, and locking the vehicle, among others. The Court also determined that the vehicles were "prescribed work places" because the trucks were necessary to reach customers' homes and to carry tools for servicing those customers. Further, similar to traditional work premises, the employer required the technicians to keep their assigned vehicles clean, organized, safe and serviced.

Preventive Strategies

In light of Stevens, Washington employers should review their practices concerning non-exempt employees' use of company vehicles to ensure that such employees are being compensated for all hours worked, and that all working time is being accurately recorded. Further, while the ruling in Stevens does not directly impact employers outside the State of Washington, this case illustrates to employers everywhere that the compensability of non-exempt employees' pre- and post-shift activities is increasingly likely to be subjected to judicial scrutiny, especially in the wake of the "continuous work day" rule applied in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). To deter such claims—which often are brought as class actions—employers should audit their time recording and compensation practices to ensure that they are capturing and paying their non-exempt employees for all time worked.

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