In a May 9, 2011 posting in the Connecticut Employment Law Blog, Daniel Schwartz took a look at the recent decision of the Second Circuit in Kuebel v. Black & Decker.  He notes that the Court held that home-to-work commute time does not become compensable time, merely because the employee has performed work-related tasks before commuting in the morning or when he returned to his house at night.

I applaud this decision because it represents another rejection of employee claims and theories in which the employee seeks to transform commute time into compensable time.  Numerous courts have rejected such attempts in a number if scenarios.

The continuous workday theory encompasses both preliminary and postliminary tasks which are defined as those integral to the performance of the employee’s primary task and thus these tasks act to “elongate” the compensable workday.  Here, the Court concluded that there was no employer induced compulsion to perform these activities either just before the employee left for work or in the morning or immediately after he returned home in the evening.

About ten years ago, there were a number of so-called canine cases. In those cases, police officers who used dogs in their work and took the dogs home claimed, in various jurisdictions, that the fact that they transported the dog converted their home-to-work commutes into compensable time.  In an interesting published decision that I handled, which also went to the Second Circuit, Kavanagh v. Grand Union, 192 F.3d 269 (2nd Cir. 1999), the employee, a refrigeration mechanic for a chain of supermarkets, claimed that because he carried specialized tools in the trunk of his car (and his commute was very long), his commute time was compensable.  His claim was rejected on summary judgment and upheld by the Second Circuit.

Employees seem to sometimes look to try to extend their compensable work day and hook things onto their travel time or claim that the attributes of that commute time (e.g. carrying tools in trunk) make it worthy of compensation.  The best defense (as it usually is) is to be proactive.  I recommend implementing a well drafted travel time/ pay policy that specifically outlines the Company’s position on such matters, with an emphasis on the fact that home-to-work commuting is never compensable.  A variation on the theme is to agree to pay for some portion of the travel to work, e.g. after one hour.  By doing that, the Employer is spending a nickel to save a dollar in that it is evidencing that some payment will be made for the commute time, helping to negate any claim that compensation additional to that is legally mandated.