I just posted on a travel time case the other day but I have a special fondness for these kinds of cases and enjoy watching the numerous, creative ways that plaintiffs try to convert ordinary travel into working hours, i.e. compensable. In a recent case, a class of employees whose job function was directing traffic around construction sites sued for overtime, alleging that their time traveling to and from the job site in a company pickup truck was compensable. The federal judge rejected that contention, ruling that the commuting time was neither “indispensable” nor “integral” to their jobs. The case is entitled Luster et al. v. AWP Inc. and was filed in federal court in the Northern District of Ohio.
The Judge ruled that the job functions, including daily vehicle inspections and giving rides to other workers who were going to the job site, were not fundamental components of their job duties. As the Judge aptly stated, the “plaintiffs here simply have not shown that the activities they highlight are intrinsic aspects of the work of a traffic control specialist or are indispensable to that work.”
The plaintiffs claimed that they could not perform their jobs without picking up their fellow employees, completing vehicle inspections and gassing up. They alleged these duties took up to fourteen (14) hours per week. The Judge disagreed. The Judge referenced the exceptions Congress engrafted into the Employee Commuting Flexibility Act, which allowed the use of Company vehicles for commuting or doing other kinds of preliminary activities. The Judge cited the fairly recent US Supreme Court decision in Integrity Staffing Solutions v. Busk where the Court held that preliminary activities are compensable only if they are “an intrinsic element” of the worker’s primary duties. Guided by Busk, the Judge ruled that the workers could not succeed on the simple/sole basis that the employer required these duties to be performed.
The Judge noted that there was a clear demarcation between tasks that might be necessary for work and those which were “integral and indispensable” to the duties that the employee was charged with performing. Tellingly, the Judge noted the plaintiffs did not allege that were compelled to report to a central location or meeting place prior to going to the job site. That meant that the time spent prepping the truck and then transporting co-workers was not compensable “shop time.” There would have been almost two-thousand workers in the class.
I like the direction that the Judge took in this case, relying on an “integral and indispensable” theory and the rationale of the Busk case. The mere fact that the drivers had to pick up workers did not convert their travel into compensable time. Significantly, the workers were not compelled to drive to a central location or Company “yard” before they picked up the workers and travelled to the job site. That might have changed things.
But not this time…