By: Abby S. Busler
Do your employees commute to and from work in company owned vehicles? Are your employees compensated for their travel time? Should employees’ commute times ever be considered paid work hours? These questions were answered in a recent Wisconsin Supreme Court decision, clarifying employee commute and compensation practices. As wage and hour claims become more prevalent, this case provides clarification on commuting issues which will allow employers to review their own policies and adjust as necessary.
In Kieninger v. Crown Equipment Corporation, the Wisconsin Supreme Court reviewed whether an employee was entitled to wages for the time spent commuting from their home to a jobsite in a company-supplied van carrying tools. At this particular company, employees have the option to return the company van to the office facility and then drive their personal cars home, or they may choose to drive the company van home each night and travel directly to a jobsite the next day.
The company compensated its employees for travel time between jobsites during the workday, as well as travel time between a jobsite and the office. However, the company did not compensate any employees for the commute time between home and the office or initial jobsite when driving either their personal vehicles or a company van.
Mr. Kieninger filed a complaint with the Wisconsin Department of Workforce Development (DWD) claiming entitlement to unpaid wages based on his commute time to a jobsite from home in a company van. The DWD dismissed the claim. Mr. Kieninger then filed suit in Dane County Circuit Court, included other employees and created a class action suit. The circuit court granted the company’s motion to dismiss, concluding that it must interpret Wisconsin’s labor laws consistently with federal labor laws and enforce the non-paid commute provision found in federal law. Keininger appealed, and the Wisconsin Court of Appeals said federal law did not control and reversed the Circuit Court, and remanded for additional proceedings. The Company then requested the Wisconsin Supreme Court review the issue.
The Wisconsin Supreme Court accepted the case and reviewed Wisconsin’s statutory law defining “workday” as “the period between the time on any particular workday at which such employee commences their principal activity or activities and the time on any particular workday at which they cease such principal activity or activities.” While the Supreme Court agreed with the Court of Appeals that federal law did not control in this instance, it reversed the Court of Appeals based on the Supreme Court’s interpretation of Wisconsin law. The Supreme Court noted that the DWD adopted principles to be used in determining whether or not time spent traveling is work time and concluded that time spent traveling between jobsites is compensable, while simply traveling with company tools in a company van from an employee’s home to report to a jobsite is not an integral part of a principal activity of the job. Therefore, travel time between a home and a jobsite is not considered part of the workday.
Importantly though, the Wisconsin Supreme Court stated that its holding is limited and applies only to circumstances in which an employee drives a company provided vehicle between home and a jobsite. In other words, the Court’s decision makes clear that the mere fact the employee is using a company vehicle containing company tools does not alter the fact that it is a non-compensable commute. Employees will still be compensated for travel between an employer’s location and a jobsite or between two different jobsites, as that activity is considered a principal activity in a work day.
In this decision the Wisconsin Supreme Court has clarified that it is the purpose of the travel, not the vehicle used for the travel, which will control. Home to work (whether “work” is at the company office or a jobsite) and work to home are not compensable as that is merely commuting, regardless of the means used for the commute. The Court explained: “ Whether the employee is in a personal or company vehicle, he is doing the exact same thing, and no one disputes that the time at issue would not be compensable if Mr. Kieninger had driven his own automobile.” Keininger further argued that he should be compensated in this instance because he carries company tools in the van which are needed for his work, but the Court rejected that distinction. Neither the vehicle nor the contents of the vehicle altered the fact that Keininger was merely commuting to and from work, which is not compensable.
Employers should confirm that their policies regarding employee travel are up to date in accordance with this decision. Penalties associated with the Fair Labor Standards Act can include back pay of wages, liquidated damages and attorney’s fees. Employers can minimize their expense and risk of inconsistent pay practices by making clear what travel qualifies for compensation.
Abby S. Busler serves as member of the firm’s Labor & Employment team and the School and Higher Education practice group in Green Bay. Her practice primarily focuses on counseling education clients in school law and labor and employment issues. Ms. Busler can be reached at abusler@dkattorneys.com or 920.431.2230.
This article will be published in the August 2019 edition of The Business News.