I had blogged about this case some months ago and am interested in following it through. Now, a Judge has granted conditional certification to a class of oil and gas industry employees who are seeking pay for their travel time to and from employer provided housing to their work locations. The case is entitled Copley et al. v. Evolution Well Services LLC and was filed in federal court in the Western District of Pennsylvania.

The Judge ruled that the workers had made the “modest factual showing” needed for securing conditional certification. This now allows the plaintiffs to send opt-in notices to other potential class members. The Judge allowed certification “as to their claim for unpaid time spent traveling from home to EWSO-controlled housing, employees’ declarations state that ‘hitch employees’ would arrive at the EWSO-controlled housing the day before the start of a hitch, that employees provided their own transportation to the EWSO-controlled housing, and that, per EWSO policy, such travel time was not compensated.”

The workers also demonstrated, initially, that they were not paid for mandatory meetings and drug testing and COVID-19 screenings; they claim these could take up to a half-hour. The Company, in its opposition, contended that the employees had not specified when the travel time was incurred. The Company argued that for travel time claims to be cognizable the employees had to prove that their travel time cut across their usual work hours, which is the test under the applicable FLSA regulations.

The Judge rejected that, noting that the employee ”declarations state that employees would arrive on the ‘day’ before the start of a hitch.” The Judge also rejected the Company’s argument that the travel was a “normal incident” of their work. The Judge noted that the employees did not travel back to their homes at the end of the workday, but rather to Company provided housing for their two-week stretch at a distant job site. The Judge did note that the time may ultimately prove to be non-compensable but at this rather early stage of the litigation it was not “patently clear that employees cannot prevail as a matter of law.”

The Takeaway

These travel time cases are often very nuanced and the Company is right that the travel on an off day has to cut across the usual workday hours to be compensable. Also, I believe that the Company provided housing (e.g., hotel) at the job site is, under the FLSA regulations and precedent, the equivalent of the employees’ regular homes so that ostensible home to work, or hotel to work travel time, should not be compensable.

Just shows how easy it is to get conditional certification…

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