Labor & Employment Law

Predators, Physicals and Working Time

By Mark E. Tabakman, Esq.

As I have written about, many activities may be deemed compensable working time, under the right circumstances.  Some of these activities might not appear immediately visible as working time. For example, a class of almost 200 employees who worked at a facility for sexually violent predators on McNeil Island, Washington State and had to ride a ferry to and from the facility were not entitled to overtime pay for the travel time on the ferry, held an appellate court.

The court ruled that these employees were not “on duty” at the Special Commitment Center during their commute and are not at a “prescribed work place.” There were nineteen scheduled ferry runs per day, with each trip taking approximately 20 minutes. The employees did not have to perform any work during the trip, but they claimed they could be disciplined if they misbehaved on the boat.

As a general rule, home-to-work commutation is not compensable. This case falls into this general rule as the ferry ride was merely an extension of the home to work, ordinary commute.

Conversely, time spent by employees in drug testing and physical examinations required by the Department of Transportation for commercial licensing purposes are engaged in productive work for which they must be compensated, under a ruling of the US Department of Labor. When the employees are engaged in these activities, they are not “free” to do other things and the restriction on their time emanates from a requirement of the employer, in order to serve the employer. Thus, during those times, the workers are subject “to the employer’s discretion and control.”

Interestingly, the DOL ruled that it did not matter whether the drug tests were on duty or off duty. The agency concluded that “whenever an employer imposes special requirements or conditions that an employee must meet before commencing or continuing productive work, the time spent in fulfilling such special conditions is regarded as indispensable” to the principal activity. Therefore, if the US government mandated physical examinations and drug testing as a “condition of the employer’s license to operate its business,” that time spent was for the benefit of the employer and compensable.

These determinations are often close calls and hinge on the relationship of the activity to the primary work activity and whether there is an indispensable relationship. Travel time issues are especially thorny questions.

Full post as published by Wage & Hour - Development & Highlights on July 16, 2008 (boomark / email).