Commuting: Court Says Commute Time Not Transformed into Hours Worked Merely Because Employees Had to Carry Files

Because an employee’s commute between home and the office usually
doesn’t count as hours worked, you don’t have to pay an employee for the time.
However, if during the commute the employee must do work for the employer’s
benefit and at the employer’s request, the time must be compensated. But if a
worker must carry a load of files to and from work every day, does that turn a
commute into hours worked? We’ll look at a new case in which a court turned
away a lawsuit in which employees claimed they were entitled to be paid for
toting company files each day.

Commuting with Heavy Files

Inspectors with the New York City Fire Alarm Inspection Unit
(FAIU) worked in the field throughout New
York’s five boroughs, with each workday beginning at
the first inspection site for the day and ending at the last inspection site.

Before heading out for inspections on Friday mornings, the
inspectors reported to FAIU headquarters to drop off completed inspection
documents for the week and pick up new documents for the week ahead. The files
generally consisted of floor plans and fire alarm histories of the buildings to
be inspected, inspection checklists, forms, reports, and some correspondence between
building owners and the city. Inspectors were responsible for keeping the
records safe from the time they picked them up on Friday morning until they returned
them the following Friday, and they were not permitted to store files overnight
at FAIU headquarters. The inspectors carried the files in city-issued
briefcases during their commutes from home to work and back. The files weighed
an estimated 15 to 20 pounds.

If you impose restrictions or work that hinders an employee’s ability to use commuting time as he or she wishes, you could be on the hook to compensate for that time

Employees Say They Should Be Paid

A group of inspectors sued the city, charging that the inspectors
should have been paid for their commuting time because having to carry and
secure the inspection files affected their commutes in various ways. For
example, inspectors claimed the heavy documents sometimes caused them to miss a
bus or train, slowed down their walk to the subway station, or generally delayed
the commute by maybe 10 minutes. What’s more, they claimed, having to ensure
the security of the files meant that sometimes they had to miss a social
engagement because they had to go directly home after work to drop off the
files.

Commute Time Not Compensable

A federal appeals court in New
York has now dismissed the lawsuit.1 The court explained that under
the federal Fair Labor Standards Act, an employer is not required to compensate
an employee for commuting to and from work, although the employee must be paid for
any work performed during the commute.

The court concluded that being required to carry a briefcase of
work documents without any other active employment-related responsibilities did
not transform the commute into work. Said the court: “Carrying a briefcase
during a commute presents only a minimal burden on the inspectors, permitting
them freely to use their commuting time as they otherwise would have without
the briefcase. Whether it be reading, listening to music, eating, running
errands, or whatever else the plaintiffs choose to do, their use of the
commuting time is materially unaltered.”

The court also considered whether the employees had to be paid for
any added commute time because they had to carry the documents. The court
pointed out that any such extra time was primarily for the employer’s benefit,
and the inspectors themselves received no personal convenience from losing
personal time because of a lengthier commute. However, the additional time was so
minimal—just a few minutes on occasional days—that the city was allowed to
disregard it for pay purposes.

Impact of Case

This case makes it clear that you don’t have to pay an employee
for commute time merely because he or she must carry files, small tools, or
small electronics during the commute, provided this doesn’t lengthen the
commute by more than a few minutes here and there. On the other hand, you could
be on the hook to compensate for that time if you impose restrictions or work
that hinders an employee’s ability to use commuting time as he or she wishes.
To avoid problems, make sure managers and supervisors know that they should not
burden employees with significant work duties during commutes.

You can access the decision at www.ca2.uscourts.gov/opinions.htm.

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1 Singh v. City of New
York, U.S.C.A. 2nd Cir. No. 06-2969-cv, 2008