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Time Spent Commuting (Including On An Employer’s Bus) Is NOT Compensable

 

Bennett v. McDermott Int’l, Inc. - Fifth Circuit Court of Appeals


Facts:  Kendrick Bennett and other similarly situated workers were employed by McDermott Int’l, Inc. (“McDermott”) under a contract in relation to a natural gas liquefaction facility in Louisiana.  As the worksite was remote, McDermott required these workers to drive to a park and ride location and then take an employer bus to the worksite.  Sometimes it would take hours for the workers to make the commute, whether it be because they had to wait on a bus or drive to another park and ride location to catch a bus with open seats.  Workers were prohibited from driving their own vehicles to the worksite.  Notably, the workers were not compensated for this time spent commuting even though they sometimes had to take work calls while on the bus and do work.

Suit was brought against McDermott by these workers who alleged the company violated the Fair Labor Standards Act (“FLSA”) and Louisiana Wage Payment Act (“LWPA”) by failing to pay them for the time spent commuting to the worksite.  The district court granted McDermott’s motion to dismiss on the grounds that the FLSA’s Portal to Portal Act barred the claims and the FLSA preempted the state law claims.  An appeal was subsequently filed with the Fifth Circuit Court of Appeals.

Holding:  The Court of Appeals began its analysis of the appeal with a recognition that employers are only required to pay employees for work related activities that take place before or after work if they are “an integral part of” and “essential to the principal activities of the employees.”  While commuting can be (or actually is) necessary to most jobs, that alone does not make it compensable.  Rather, a commute is compensable only if it is tied to the “principal activity” of the work the employee is hired to perform.  The Court made clear the test could not be whether compensability was based upon the employer’s principal activities as an employee’s commute would likely always be necessary to an employer’s work getting done.

Turning to the argument that the commute was inconvenient (and required a great deal of time) and therefore should be compensable was rejected by the Court.  When Congress enacted the Portal to Portal Act, Congress made clear that the test was whether a commute involved work, specifically work which the employee was hired to do.  Whether a commute was long or inconvenient was held to be immaterial for the purposes of compensability under the FLSA.  The Court recognized that while allegations that some time was spent on the commute doing work or taking work calls, that alone was insufficient to support a finding that time spent commuting was compensable.  However, the Court found that the district court should have given the complainants time to amend their pleadings and therefore this portion of the appeal was remanded.

Judgment:  The Fifth Circuit Court of Appeals affirmed the dismissal of the employees’ claim on the grounds that time spent commuting, including on the employer’s bus, to the job site was not compensable under the FLSA.

The Takeaway:  I cannot say I disagree with the Court’s ruling here.  Look at the other side of the coin:  If the Court held that the time spent commuting was compensable, imagine the slippery slope that would be created.  Granted, there might not be as much commuting going on now in light of the coronavirus pandemic, but in essence, the time that an employee spends driving their car, riding their bike, taking a bus, walking, etc. to the workplace is likely quite sizable over the course of weeks/months/years.  If employers all of a sudden had to pay their employees for this time spent commuting, the sudden surge in labor costs would be enormous.  Rather than create new law (and buck what Congress set out in the Portal to Portal Act), this was a good decision.

Majority Opinion Judge:  Per curiam 

Date:  April 16, 2021

Opinion:  https://www.natlawreview.com/article/commute-time-compensable-only-when-integral-and-indispensable-to-employee-s-duties

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