Wisconsin Supreme Court Holds State Law Precludes Pay for Normal Commute Time in Employer-Provided Vehicles
Reversing a decision of the lower appellate court, the Wisconsin Supreme Court has held that state law does not require employers to pay employees for routine commute time driving company-provided vehicles between the employees’ homes and their assigned jobsites. Kieninger v. Crown Equipment Corp., 2019 WI 27 , 2019 Wisc. LEXIS 123 (Mar. 20, 2019). The Supreme Court held that its conclusion was based on a reasonable interpretation of the regulations governing Wisconsin’s wage and hour laws. This is particularly notable because the Wisconsin legislature has not adopted the language of the Employee Commuting Flexibility Act (EFCA), which in 1996 established that normal commute time, even when driving an employer-provided vehicle, is not compensable under the federal Fair Labor Standards Act (FLSA).
Specifically, under the applicable regulations, “wages accrue when employees are engaged in ‘physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer’s business.’” Noted the Supreme Court (citing Wis. Admin. Code § DWD 272.12(1)(a)1). Moreover, “[t]hese exertions take place within a ‘workday,’ which comprises  the period between the time on any particular workday at which such employee commences their principal activity or activities and the time on any particular workday at which they cease such principal activity or activities’” and “the ‘principal activities’ of which a workday consists ‘include all activities which are an integral part of a principal activity.’” (citing Wis. Admin. Code § DWD 272.12(2)(e)1). To that end, “[t]asks ‘integral’ to a principal activity encompass ‘those closely related activities which are indispensable to its performance.’” (citing Wis. Admin. Code § DWD 272.12(2)(e)1.c).
“Distilling this guidance into a workable framework,” noted the Supreme Court, “tells us that an employee’s activity is compensable if it takes place during a workday (that is, it is part of the employee’s principal activities, or is closely related and indispensable to them), it involves physical or mental exertion controlled or required by the employer, and it is necessarily and primarily done for the benefit of the employer’s business.” The regulations themselves clearly establish that normal commuting from home to work and back in an employee’s vehicle is not compensable, and “[w]hether the employee is in a personal or a company vehicle, he is doing the exact same thing, and no one disputes that the time at issue would not be compensable if [the plaintiff] had driven his own automobile.”
Moreover, the mere fact that the employee may be carrying tools in the employer-provided vehicle necessary to perform his principal job activities is an insufficient basis to convert the commute time into compensable work time, as such circumstances would “transform virtually every commute into a wage-earning event.” If that were the case, the mere fact that the employee is transporting himself to work would qualify as compensable time because “conveying an employee’s physical and mental resources to the office is integral and indispensable to a principal activity, to wit, whatever they were hired to do.” The Supreme Court distinguished this employee’s situation (direct travel from home to worksite) from cases in which an employee is required to make a two-leg journey, first from home to an employer-designated meeting place to pick up tools and then from the meeting place to the job site. The applicable regulations require that the second leg of that journey is compensable. The Supreme Court noted that those regulations describe the circumstances of employees who do not commute in an employer-owned vehicle, which is the opposite of the situation the employee in this case was faced with. Thus, held the Supreme Court, “[w]e cannot conclude that conveying company tools from an employee’s home to his jobsite, without more, makes his travel time ‘an integral part of a principal activity’ . . . or a ‘closely related’ activity that is ‘indispensable to its performance’ within the meaning of [the applicable regulations]” and such commute time is, therefore, non-compensable.