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June 07, 2011
Is Commute Time Ever Compensable?

A New York salesman worked for a tool maker for 9 months. His supervisors criticized his performance, and he criticized their overtime practices. He sued, charging that because he performed some work tasks at home before leaving for work and after returning home, his commute time should have been compensated. He also claimed he was told never to report having worked more than 40 hours a week.

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What happened. “Kruser” was a retail specialist for Black & Decker, assigned to do in-store marketing and sales for the company at six Home Depot locations. He traveled to the Home Depots from his home (not to or from a B&D location). B&D paid for time spent at home to synchronize a company-provided personal digital assistant (PDA) with the B&D server, answer company e-mail and voice mail, and prepare display materials. And, it paid for travel time to a store over 60 minutes. B&D expected specialists to spend between 5 and 8 hours a day in stores but also required that specialists manage their tasks so as not to work more than 40 hours a week. Accordingly, Kruser later testified, he falsified his time cards so that they never showed more than 40 hours, even though he routinely worked between 1 and 5 hours over that every week.

A judge in federal district court considered Kruser’s charges and ruled entirely in B&D’s favor, dismissing his suit. He appealed to the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the court said. Appellate judges reviewed Department of Labor regulations at the federal and state levels. First, they decided that regardless of what tasks Kruser performed at home before and after work, they did not start the “continuous workday” clock. They said he could have gone to the gym or taken his kids to school after doing the at-home tasks and before driving to his first store.

Kruser testified that he complained to his boss repeatedly that he had to work overtime and wanted to be paid for it. The boss replied, Kruser said, that B&D “can’t afford to pay overtime” and ordered him to change his time cards. Judges decided the overtime hours he claimed should have been compensated. Furthermore, it appeared that B&D knew it would be difficult for specialists to limit their work to 40 hours, so it “willfully” refused to pay overtime, which would extend the statute of limitations on Kruser’s back pay from 2 years to 3. That question will go to a jury. Kuebel v. Black & Decker, U.S. Court of Appeals for the 2nd Circuit, No. 10-2273-cv (5/5/11).

Point to remember: It’s good news for employers that judges so firmly ruled that Kruser’s commute time was not compensable. Travel to a customer’s premise is usually paid if the employee first reports to the office.

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