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A recent decision by the North Carolina
Court of Appeals confirms that employees are not owed wages for time
spent “waiting and traveling” prior to their arrival at the job site
when such activities are not an integral part of their job duties.
In
Leverette vs. Labor Works International, LLC, the plaintiffs
were day laborers who were hired by a temporary labor agency on a
day-to-day basis and worked numerous temporary jobs for the agency’s
clients. The Court of Appeals ruled the plaintiffs were not owed wages
for time spent waiting for and getting a ride to and from a client’s job
site because such “waiting and traveling” was not part of their
principal job activities or indispensable to the employer’s business.
The facts of this case are important for understanding the Court’s
ruling.
The temporary labor agency’s office opened
early each workday to begin dispensing job tickets to those persons who
wanted to work that day. After the plaintiffs received a job ticket,
they could choose to ride the agency’s transportation van to and from
the job site or use private or public means of transportation to get to
and from the job site. If the plaintiffs chose to use the agency’s
transportation van, they waited at the agency’s office for the van to
arrive and paid a daily fee for using the agency’s van to travel to and
from the job site. The plaintiffs were free to do as they wished after
getting a job assignment and while waiting for the agency’s van to take
them to the job site. If the plaintiffs did not have basic safety gear
required for a job, such as goggles, hard hats, gloves or boots, they
could get such gear at the agency’s office for a daily fee before
traveling to the job site.
The agency paid the plaintiffs wages only
for the time they spent working at the client’s job site after their
arrival at the job site and before their departure from job site at the
end of the day. The plaintiffs claimed they were owed additional wages
for the time they spent waiting at the agency’s office to be transported
to the client’s job site and for the time they spent traveling to and
from the client’s job site in the agency’s transportation van. They
argued this time was part of “hours worked” under the North Carolina
Wage and Hour Act (“NCWHA”). The NCWHA provides that “hours worked” for
purposes of wages owed to an employee means “all time an employee is
employed,” and that “employ” means “suffer or permit to work.”
In addition to the NCWHA, the Court
considered the federal Portal to Portal Act (“PPA”). Pursuant to the
PPA, employers are not required to pay employees for: (1) walking,
riding, or traveling to and from the actual place of performance of the
principal activity or activities which the employee is employed to
perform, or (2) activities which are “preliminary” or “postliminary” to
such principal activity or activities. Thus, under the PPA, employers
must pay employees for time spent waiting to start work and traveling to
work only when such “waiting and traveling” is part of the employee’s
principal job activities or is integral and indispensable to the
employer’s business.
In situations involving temporary
laborers, according to the Court, several factors are considered in
determining whether an employee’s “waiting and traveling” time is
compensable under the PPA and the NCWHA because it is predominantly for
the benefit of the employer and integral to the job. These factors
include (i) whether the workers were required to meet at the labor
agency’s office before going to the job site, (ii) whether workers
performed labor before going to the job site, (iii) whether workers
picked up and carried tools to the job site, and (iv) whether the
workers were able to use the time for their own personal activities.
The Court of Appeals in Leverette
affirmed the lower court’s dismissal of the plaintiffs’ claims for
additional wages, holding that the time they spent waiting for and
getting a ride to and from a client’s job site was not part of their
principal job activities or indispensable to the employer’s business.
The Court found that the plaintiffs did not perform any work at the
labor agency’s office or while they were being transported to and from
the client’s job site in the agency’s van. The Court noted that the
plaintiffs could choose whether to use the agency’s van or other means
of public or private transportation to get to and from the job site.
Also, though the plaintiffs might pick up some general safety gear at
the agency’s office before traveling to the job site, such goggles or
hard hats, they did not pick up tools at the agency’s office and carry
them to the job site. Finally, the Court emphasized that the
plaintiffs were free to do as they wished after getting a job assignment
and while waiting for the agency’s van to take them to the job site.
The Court viewed the plaintiffs’ use of the agency’s van to get to and
from a client’s job site as similar to home-to-work travel.
The Leverette Court distinguished
the plaintiffs’ situation from the United States Supreme Court’s
decision in 2005 in IBP, Inc. vs. Alvarez, where the Supreme
Court held that time spent by employees donning (putting on) and doffing
(removing) special protective gear and clothing, as well as time spent
walking to and from the protective gear changing area, was compensable
under the PPA. (We reported on the Alvarez decision in our
November 21, 2005 Employer Alert, Supreme Court Rules that Some
Walking Time on Employer’ Premises is Compensable.) The
Leverette Court noted that the plaintiffs were not required by
the labor agency to don or doff special protective gear or clothing at
the agency’s office before traveling to the job site and that no special
protective gear or clothing was used on the jobs offered by the agency.
Instead, the only gear the plaintiffs picked up and carried to job sites
was general safety equipment such as goggles, hard hats, gloves or boots
that were made available at the agency’s office for a daily fee.
Accordingly, the Leverette Court
ruled that the time the plaintiffs spent “waiting and traveling” prior
to their arrival at the job site and after their departure from the job
site at the end of the day could not be considered “hours worked” under
the NCWHA and they were not owed additional wages for such time.
Employers that have employees who spend
time waiting to work or who travel to work in company vehicles will want
to consult their employment counsel and analyze their situations to
determine if such “waiting” time or “traveling” time is compensable in
light of the Leverette decision, especially if employees are
waiting primarily for the company’s benefit and are not free to use that
time for their own purposes or if employees are required to travel to
work in company vehicles and cannot use other means to get to work.
For
questions about this Employer Alert or assistance with issues concerning
wage and hour requirements, please contact
Louis Meyer at
lmeyer@poynerspruill.com or 919.783.2810 or
Susie Gibbons at 919.783.2813 or
sgibbons@poynerspruill.com.
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