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L&I Clarifies Washington Rules Regarding Pay for Commute Time in Employer’s Vehicle
By Michael J. Killeen and Sheehan Sullivan Weiss
[September 2008]
The Washington Department of Labor and Industries (L&I) has revised one of its Administrative Policies to clarify when time spent commuting in a company-provided vehicle constitutes paid work time.
The new Administrative Policy, which became effective September 2, states that travel or commute time is compensable when the facts and circumstances show that the time meets the definition of “hours worked.” Under current regulations, hours worked has three elements, each of which must be satisfied. The employee must be:
- authorized or required by the employer;
- on duty; and
- on the employer's premises or at a prescribed workplace.
Although the analysis depends on the specific facts and circumstances of each employee, employer, and workweek, L&I makes clear that time spent driving a company-provided vehicle during an employee's ordinary travel, when the employee is not on duty and performs no work while driving between home and the first or last jobsite of the day, is not considered hours worked.
The Administrative Policy was the result of a year-long review process following the controversial and confusing Washington Supreme Court decision in Stevens v. Brink's Home Security, Inc., 162 Wn.2d 42, 169 P.3d 463 (2007). In Brinks, the court held that the commute time for home security installation and service technicians was compensable because the technicians drove employer-provided vehicles in which they not only carried their tools and supplies, but
the technicians
were also required to engage in interactive communication regarding their work assignments while commuting and could not use the vehicle for personal activities before and after work while they were commuting.
The Administrative Policy assists employers by providing specific, non-exclusive factors to consider in determining if an employee is “on duty” or “on the employer's premises or at a prescribed workplace.” The policy also provides examples of when drive time between home and the first or last jobsite of the day using a company-provided vehicle is compensable and when it is not.
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This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.
Copyright © 2008, Davis Wright Tremaine LLP.
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