Time Spent on Out-of-Town Travel is "Hours Worked" and Compensable Says Washington Court of Appeals

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Seyfarth Synopsis: The Washington Court of Appeals has clarified that all time employees spend on out-of-town travel for the benefit of their employers, including trips to and from an airport and all time spent flying, is considered “hours worked” and compensable.

Background:  Port of Tacoma Hourly Employees Go on Out-Of-Town, Work-Related Travel

In 2017, the Northwest Seaport Alliance purchased new marine cranes from a Chinese manufacturer to employ at the Port of Tacoma.  To learn more about the cranes, the Port invited four of its mechanics on out of town trips for training and to observe the crane manufacturing process in China and Houston, Texas.

The Port reached an agreement with the workers’ union for payment of wages to the four hourly employees. They agreed that the employees would be paid a maximum of eight hours a day, straight time, for travel to and from China and within China. The Port made all of the arrangements for these trips, including air travel, which took place in March, May, and June 2017. 

The Port paid the employees consistent with this agreement but, as a result, did not pay the employees for all of their time spent traveling.  For example, the employees who went to China were told to arrive at the airport three hours before their scheduled flight.  They then worked for part of the flight there, and spent the rest of the flight on activities unrelated to work.  The mechanic who went to Houston for training was paid for the training but not for his flight time.

The four mechanics each filed wage claims with the Department of Labor and Industries (Department) seeking compensation for all time spent traveling for the Port, including travel to and from the airport, time spent at the airport, and all time spent in flight. 

A Battle for the Meaning of “Hours Worked” in Administrative Proceedings and at the Superior Court

The Department investigator first found for the four employees. The decision was based after (1) consultations with Department specialists, (2) reviewing Department policy, which states “hours worked” means “all work” and includes travel time, and (3) reviewing an unpublished Department “Desk Aid,” which provides that all travel time related to work, including travel time to airports, is compensable.  The Desk Aid is not available to the public, and the Department is not required to apply its provisions.  

 The Port then appealed to the Office of Administrative Hearings (OAH).  After considering parallel motions for summary judgment, the OAH found for the Port, effectively finding that the employees were not on duty while traveling and therefore should not be compensated for that time. 

The Department (on behalf of the employees) then petitioned for review to the Director of the Department.  The Director reversed, finding for the Department.  It concluded, in part, that “hours worked” does include travel time for out-of-town work assignments because it is performed for the employer’s benefit and is part of the employee’s job duties.

The Port petitioned for judicial review before the superior court.  It argued that:  (1) the Director erroneously interpreted the applicable law, (2) erred in relying on the Desk Aid, and (3) suggested that out-of-town travel should not be considered “hours worked” just like home-to-work travel.  The superior court found for the Port, granting its summary judgment motion.  The Department appealed to the Court of Appeals.

The Court of Appeals Clarifies that Travel Time for Out-Of-Town Travel is “Hours Worked”

In finding for the Department, the Court of Appeals concluded that out-of-town travel is “hours worked” because the employees were “on duty” while traveling for the Port and not on their “daily commute” to work.  The time spent traveling was: (1) part of an assigned task, (2) done at the Port’s direction, and (3) time that employees would have otherwise spent in non-work activities. 

The Court supported its decision finding that federal law, most state laws, the Department’s policy, and the unpublished Desk Aid all distinguish between unpaid time spent on the daily commute to work—which allows workers to tend to personal activities—and out-of-town travel—where employees are at the control of the employer.  It also granted deference to the Department’s policy, which has long treated travel time as compensable “hours worked” because the policy applied to the workers at issue and was not contrary to legislative intent.

Takeaways

All businesses with non-exempt employees in Washington should become familiar with the changes to the law.  Employers should revisit travel-time policies and practices for hourly employees as they must now compensate them for all time spent traveling out of town, even if they’re not engaging in work for the company.  This includes, for example, time spent traveling to and from the airport or to and from the employee’s hotel, time spent at the airport, and time spent flying.  Employers should be mindful of the time requirements typically needed for the out-of-town activity and update their policies to ensure compliance with the new laws.  Finally, employers should consult with experienced counsel if they have any questions or concerns regarding employee travel compensation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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