Legislation Protects Employers from Unintended Liability for Commute Time

By John Riper Ashbaugh Beal LLP

In employment lawsuits it is rare for Washington courts to reach a result that makes both employers and employees worse off but that happened several years ago in a case over compensation for commute time. In 2007 the Washington Supreme Court ruled that an employer who furnished company vehicles to employees and allowed the employees to commute in those vehicles was required to pay for their commute time. The ruling in a case known as Stevens v. Brinks imposed retroactive liability for commute time going back several years.

Although the ruling was an obvious windfall to the handful of employees who won in that particular case in the construction community it was unwelcome on both the labor and management sides of the industry. Contractors frequently provide company vehicles for full-time use to superintendents and other non-exempt employees. These vehicles arent just a substantial perk: They represent a prominent acknowledgment of the employees achievement in the company and in the industry.

But the Supreme Courts 2007 decision in the Brinks case caused many construction firms to rethink their company vehicle policies. Some employers restricted use of company vehicles. Other employers pulled their vehicles back from employees entirely fearing the prospect of crippling liability for overtime pay that no one ever imagined might be owing.

Now a bipartisan group of legislators is sponsoring a bill to fix the problem created by the Brinks decision. Because the Supreme Court had ruled that overtime pay was owing as a result of loosely-defined terms in Washingtons wage laws the proposed legislation clarifies what those laws do – and dont – require.

At the heart of the Brinks case was the Washington regulation requiring employees to be paid at their regular rate (or time and a half for overtime) for all hours worked. The regulation has no definition of hours worked except that it means time on duty at a prescribed workplace. Lacking anything further as guidance the Supreme Court ruled that where the employer had exercised control over the employees use of the company vehicle during commute time (by for example imposing policies for safe operation of the vehicle and occasionally contacting the employee about jobsite assignments during the commute) the employees in Brinks were on duty during their commute. And because the employees routinely carried necessary tools and supplies in their company trucks and performed routine paperwork in the vehicles while working the Supreme Court ruled the vehicles were a prescribed workplace. Consequently the Supreme Court declared that the employer in Brinks had to pay for all hours its employees had spent commuting in company vehicles.

In order to clarify the law so that employers can avoid unintended liability for commute time Washington Senators Holmquist-Newbry (R-13 Ephrata) Kastama (D-25 Puyallup) King (R-14 Yakima) and Shin (D-21 Mukilteo) are sponsoring Senate Bill 5624. If enacted that bill will add an important restriction to the definition of employment in Washington law:

employ and work do not mean or include the use of an employers vehicle for travel by an employee and activities performed by an employee that are incidental to the use of such a vehicle for commuting when the use of that vehicle for travel is within the normal commuting area for the employers business or establishment and the use of the employers vehicle is subject to an agreement on the part of the employer and the employee or representative of the employee

This clarification to the law would let employers protect themselves against unintended liability to pay for time employees commute to and from home in company vehicles and make it easier for employers to furnish company vehicles when mutually beneficial to the employer and its workforce.

John Riper is Managing Partner for Ashbaugh Beal LLP and a member of AGC’s Legal Affairs Committee.

Editor’s note: This resolution to the Brinks Court ruling proposed by SB 5624 is strongly supported by AGC and vigorously opposed by labor unions. AGC applauds the sponsors of the bill but it was not scheduled for a public hearing before the first cutoff date technically meaning that the bill is “dead” for this Legislative Session. However all bills remain eligible for consideration throughout the entire two-year legislative term and SB 5624 will be pursued in the future.