Q&A Travel Time May Be Compensable

01-Jul-2016

Question Corner

Travel Time May Be Compensable

By Jason R. Mau

Q: We have a nonexempt employee who works from home and travels to numerous sites that cover a large geographical area each day. Does his paid time begin when he leaves his house for the first jobsite or when he reaches the first jobsite? Similarly, does his paid time end when he finishes the last job or when he arrives back at home? In many cases, the first and last jobsites are 100 miles from home?

A: Under the Fair Labor Standards Act (FLSA), travel time is compensable when it is outside the regular daily home to worksite travel, where the worksite is consistent.  Thus, your employee must be paid for the time spent traveling to and from each of these sites as the travel from site to site during the day would be considered travel that is part of the employees’ principal activity under the FLSA.  Typically, you would be able to deduct from special assignment travel the time an employee normally spends commuting to the regular worksite, but here no such commute exists, as the regular worksite is his home. 

Q: We gave an employee a loan to help pay a utility bill. The employee has now voluntarily quit and still owes us some money. Can we withhold his last check and apply it to his loan?

A: Under Idaho law, you are not allowed to withhold his last check or apply it to his loan unless you have his written authorization.  Otherwise, a final check for all wages due is required to be available on the earlier of the next scheduled payday or ten days upon separation unless a written request for earlier payment is made.

Q: We are a midsize employer in the hospitality industry. Our positions range from servers and bartenders to kitchen prep cooks, line cooks, dishwashers, and chefs. Currently, all our on boarding documents and orientation training videos are in English only. We have gotten a lot of requests to have Spanish versions of the handbook and new-hire packets mainly for the kitchen staff. Since being able to read, write, and speak English is a job requirement, may we keep everything in English?

A: As long as the reason the documents and training videos are only in English is not discriminatory, you are allowed to keep them in English.  Typically, the Equal Employment Opportunity Commission frowns upon English-only policies when they require English to be spoken at all times, including breaks and lunch time. Such a policy could be considered discrimination based on national origin.  These “English-only” policies are usually justified if they are adopted because of “business necessity,” which means the policy is adopted to promote safety or efficiency in the workplace.  Examples include cooperative work assignments in which an English-only rule allows the business to work more efficiently.  Your documents and videos likely fall within the efficiency category as requiring multiple sets of documents and training videos would be a significant expense to your company.    

Q: An employee recently was injured on the job. The employee didn’t want to report it to workers’ comp, but when the injury resulted in a multiple-day hospital stay, we insisted she report it as a workers’ comp injury. We missed the Occupational Safety and Health Administration’s (OSHA) 24-hour reporting deadline. Our workers’ comp carrier advised us not to report it now since we missed the window. What should we do?

A: While the failure to report is what OSHA calls an “other-than-serious” violation, it is a violation nonetheless and I would not recommend refraining from reporting the inpatient hospitalization.  Granted, it may bring heightened scrutiny by OSHA, but as long as the incident was not one of the few exceptions from the OSHA reporting requirements (namely a vehicle accident on a public street or highway, or a hospitalization for observation only), you would be better reporting late than it coming up in a subsequent investigation, or coming to light because of a referral or whistleblower.  At least if you report the failure now, you would be aware and prepared for the likely follow-up investigation.  However, if OSHA were to become aware of it by another source, the resulting investigation would come at a time you likely will not expect it and be unprepared.  Actually, an employer in Texas was just recently penalized $5000 for such a violation.  If assessed in this case, such a penalty might end up being a better option than any potential fallout from failing to report altogether. 

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.