When Is “Travel Time” Compensable Under Federal Overtime Law?

A frequent question in overtime cases is whether an employee’s “travel time” counts as “working time” for purposes of determining how many hours in a given week an employee has worked.  Travel time is sometimes compensable, but maybe not to the extent that some believe it is.  Travel time issues can be broken into three common categories.

First, the time spent “commuting,” or driving from home to the worksite and back again, is almost never compensable.  A 1996 federal law rendered it almost impossible to argue that an employee should be paid for basic commuting time.  Now, if the employee’s actually working for the employer while commuting (for example, on a cell phone or as a passenger in the vehicle, or maybe even driving a company work vehicle) that may change things and make the commuting time compensable.  But forget about trying to bill your employer for the time you spend just fighting traffic back and forth on I-235.  You don’t ever get paid for that.

Second, time spent by an employee in travel as part of the employee’s principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.  If an employee’s required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice.

A frequent example of this is people in an occupation with lots of home or offsite office visits (service and maintenance calls, painting, landscaping, on-site computer or technology work, deliveries, etc.)  These types of employees may start their day at a central location (say, the home office of an HVAC company).  The employee may switch to a company van or truck and perhaps pick up tools or receive initial job assignments.  Then the employee hits the road and moves from one house or business to the other throughout the day.  All of that drive time, including the time from the home office to the first job assignment and the time from the last job assignment back to the office is compensable working time.

A third common area of travel time allegations concerns travel away from an employee’s home community.  Travel that keeps an employee away from home overnight is travel away from home.  Normally, only an employee’s actual travel time is counted as extra working time on overnight trips, and only if the employee’s traveling during normal working hours (including Saturday and Sunday, even if the employee normally doesn’t work weekends, as long as the weekend travel time occurs during the time period that the employee would usually be working on a weekday).

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

 

Viking Range Expands Recall of Built-In Refrigerators with Bottom Freezers Due to Injury Hazard; Doors Can Detach

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

Viking built-in refrigerators with bottom freezers

Hazard:

The refrigerator’s doors can detach, posing an injury hazard to consumers.

Consumer Contact:

Viking toll-free at (877) 546-0136 from 8 a.m. to 5 p.m. ET Monday through Friday, or online at www.vikingrange.com and click on Safety Recall Information.

Description

This recall involves Viking built-in 36-inch wide refrigerators with bottom freezers with models and serial numbers/date codes listed below. The model and serial numbers are located on the ceiling of the interior of the refrigerators. The first six numbers in the serial number range are the manufacture date of the unit in (mm)(dd)(yy).

Model numbers starting with:                      Serial number/Date codes starting with:

Designer Series

DDBB363, DDBB536, DTBB363,                           110105 – 081012

DFBB363, DFBB536, FDBB5361

Professional Series

VCBB363, VCBB536, VCBB5361,                          110105 – 080512

VIBB363, VIBB536

Incidents/Injuries

Viking has received 39 reports of falling refrigerator doors, including 12 reports of injuries involving a fracture, bruises, strains and cuts, and 25 reports of minor property damage. The 39 new reports are in addition to 57 reports in the previous recall of doors detaching, including four reports of injuries involving bruises, broken toes/fingers, and strains.

Remedy

Consumers should contact Viking immediately to schedule a free in-home repair. Consumers should stop using the recalled refrigerators if the door does not appear to be sealed properly, the door is sagging or it fails to open or close normally. If the door is working properly, consumers can continue to use the refrigerator until it has been repaired.

Source:  http://www.cpsc.gov/en/Recalls/2013/Viking-Range-Expands-Recall-of-Built-In-Refrigerators-with-Bottom-Freezers/

The Special Rules Regarding Child/Vehicle Accidents

In Norwalk yesterday a 12 year-old boy was seriously injured after being hit by a car while riding his bicycle.  News reports indicate that the child failed to stop at a stop sign and rode into the path of an oncoming vehicle.  This accident raises the question of how negligence law handles vehicle/pedestrian accidents when the pedestrian is a child.

There are two considerations in this regard.  First, what obligations do children have to protect themselves from harm?  Second, what safety duties apply to passing motorists who know or should know that they’re in the vicinity of children?

Concerning children’s responsibility for their own safety, Iowa law holds that children are judged by the standard of behavior that’d be expected of a child of like age, intelligence, and experience under like circumstances.  In applying that standard, courts initially make a subjective determination of the particular child’s capacity to perceive and avoid the specific risk involved, based on evidence of the child’s age, intelligence, and experience.  Once that has been determined, the focus becomes objective: How would a reasonable child of like capacity have acted under similar circumstances?  The particular child in question can be found negligent only if the child’s actions fall short of what may reasonably be expected of children of similar capacity.

Specifically regarding children on bicycles, children have a responsibility to follow the rules of the road and other laws of the state, including stopping and yielding at stop signs.  Further, motorists have a right to assume that others using the highway, including children riding bicycles, will obey the law.  But that right is not absolute; it extends only until the driver knows, or in the exercise of ordinary care, should know, otherwise.

At the same time, Iowa law also recognizes that children will act like children and will sometimes do things that are unexpected and even dangerous, things that an adult may not do.  Iowa has a special rule that pertains to motorists who encounter children on or near a roadway.  When a child is in plain view upon a public street or highway so that the driver of an automobile sees, or in the exercise of ordinary care should see, the child in time to reduce speed and have control of the automobile so as to avoid the child, the driver must realize the child may act without any care or may suddenly and unexpectedly leave a place of safety and move into the path of the automobile.  The Iowa Supreme Court has long held that that special rule applies to children riding a bicycle on or near a road.

 

Compensability Of “On-Call Time” Under Federal Overtime Law

Some types of employment requires you to to be always ready to go, or “on call,” sometimes outside of your normal working hours.  There’s nothing illegal about that, but issues can arise over whether the employee should be compensated for the on-call/waiting time.  There’s no set answer to that question — The compensability of on-call time depends on the facts and circumstances of each employee’s situation.

In general, courts balance the facts of each case to determine whether the limitations on an employee’s freedoms prohibit the employee from using on-call time effectively for the employee’s own private pursuits.  Employers may impose some restrictions on on-call employees without having to pay for the on-call time.  Several factors are usually considered in determining whether on-call time is compensable, such as:

Did you have to stay on your employer’s premises?

What, if any, geographical restrictions did the employer place on your movement during your on-call time?

How often did you receive calls while on-call?

Was there a fixed time limit for your response to a call and, if so, what was the time limit?

Could your on-call responsibilities be easily traded with another employee if you were unable to or did not want to respond to a call?

Were you able, or did you actually, engage in personal activities during on-call time?

On-call time, particularly in the cell-phone era, is infrequently counted as working time.  Cell-phones allow for so much freedom of movement by employees, as opposed to the days when they were tethered to a landline or had to be close enough to a phone to respond to a pager contact, that the “personal freedom” analysis generally tips in the employer’s favor.

Of course, the time you actually spend working after being called is certainly compensable.  The issue with “on-call time” is whether you should be compensated for the time you spend waiting for that call to action.  The modern trend appear to be away from requiring employers to pay for on-call except in extreme situations.  Otherwise, most employees have too much freedom while on-call and can only claim as working time their efforts after the call comes in and the work begins.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Preventing Construction Zone Car And Motorcycle Accidents

Construction zones seem to be an annual part of freeway driving between spring and fall.  What was previously a clear stretch of road is now covered with orange things and people.   Driving through construction zones can be frustrating and obviously causes delays.  Construction zones are frequent areas of motorcycle crashes and motor vehicle accidents that cause injury or death. 

Drivers need to slow down and be cautious and watchful because many dangers can be found in construction zones.  Lanes may be reduced in number or size or be altered from their usual course.  Construction workers are all over the place.  Heavy machinery is being moved about.  Traffic cones, barrels, and barriers are everywhere.  Those cones and barrels have sometimes been knocked over and are lying in the way.  And the speed limit is always reduced.  Noticing and following the bright orange construction signs will alert you to what’s happening and help guide you through the construction area.

A rear-end collision is the most frequent category of collision in a construction zone.  A prime reason for that is drivers who don’t stay alert or try to hurry through the construction.  The higher a driver’s speed, the less time that person has to react if something unexpected happens.  The best way to avoid a rear-end collision is to maintain a proper speed, keep a safe following distance (you’re not in a NASCAR race; drafting one foot off someone’s bumper will only increase the chance of a crash), and try to avoid getting distracted by anything in your vehicle.

The Iowa Department of Transportation provides a road condition map that shows you where construction zones are located.  Even so, construction zones are often unavoidable unless you really want to go out of your way getting somewhere.  And those DOT maps, while they might tell you where the construction will be, will be no help in alerting you to the actual conditions in the construction zone.  That you normally won’t know until you reach the construction area, so be careful and respond appropriately and safely to the actual conditions “on the ground.”

Your Legal Responsibilities If You’re In A Car Or Motorcycle Accident Causing Personal Injuries Or Wrongful Death

Under Iowa law you have several legal obligations following a motorcycle crash or car accident.  But not many people are familiar with those obligations.  Here’s a summary of Iowa law on this topic.

First, the law differs depending on the nature of the accident.  The greatest legal responsibility is imposed for accidents in which someone has been injured or killed.  After a serious accident, Iowa law requires you to:

1.  Immediately stop.

2.  Avoid blocking traffic.

3.  Give your name, address, and vehicle registration number.

4.  If requested, show the other driver your driver’s license.

5.  Reasonable help an injured person.

6.  Transport or arrange for transportation of an injured person to a hospital if necessary or requested.

7.  If someone has died at the accident scene, remain there except to seek necessary aid or report the accident to law enforcement and then either return to the accident or inform law enforcement where you can be located.

8. If the accident did not cause injuries or death, tell law enforcement about the accident as soon as possible.

Stile Products Recalls Tern Folding Bicycles Due to Fall Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

Tern folding bicycles

Hazard:

The bike’s frame can crack at the hinge on the top tube, posing a fall hazard.

Consumer Contact:

Stile Products; toll-free at (888) 570-8376 from 9 a.m. to 4 p.m. PT Monday through Friday or online at www.ternbicycles.com and click on Product Recall Information for more information.

Description

The recall involves Eclipse S11i and Verge S11i, X10, X20 and X30h models of Tern brand folding bikes. The 24-inch wheel Eclipse model was sold in a silver/black color combination. The 20-inch wheel Verge models were sold in silver/black, orange/white, red/black and yellow/grey color combinations. “Tern” is printed on the front end of the top tube and on portion of the frame. The model name is printed on the middle of the top tube. The frame has a 10-character alphanumeric serial number that begins with AM1A or from AM1102 through AM1207. The serial number is stamped on the bottom bracket shell of the bike. An alphanumeric service tag number located on the front of the seat tube will be requested. The bicycles’ service tag numbers included on this recall are listed on the firm’s website.

Incidents/Injuries

Stile Products has received two reports of incidents of the frame hinge cracking, resulting in minor scrapes and bruises.

Remedy

Consumers should immediately stop riding the bicycle and contact Stile Products or take the bike to an authorized dealer. Consumers will receive a free frame and have it installed at no cost.

Sold at

Authorized Stile/Tern dealers nationwide from January 2012 to May 2013 for between $1,800 and $3,000.

Manufacturer

Alu Maga Industrial Co., Ltd., of Taiwan

Manufactured in

Taiwan

Source:  http://www.cpsc.gov/en/Recalls/2013/Stile-Products-Recalls-Tern-Folding-Bicycles/

Yamaha Recalls Big Bear ATVs Due to Crash Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

Yamaha All-Terrain Vehicles (ATVs)

Hazard:

The front shock absorber can break apart and cause the driver to lose control of the vehicle, posing a crash hazard.

Consumer Contact:

Yamaha at (800) 962-7926 anytime or online at www.yamahamotorsports.com and under the Outdoors tab click on Parts and Service, and then click Factory Modification Campaigns and select the Big Bear 400.

Description

The recalled vehicles are four-wheeled 2012 Yamaha Big Bear 400 ATVs.  The model numbers YFM40FBBGR, YFM40FBBL and YFM40FGBGR can be found on the left and right side panels of the unit.  The ATVs are blue, green or camouflage and have black gear racks on the front and back. The words Yamaha Big Bear can be found on both sides of the ATV and the fuel tank. The VIN number is stamped on the frame just behind the front left wheel. The letter “C” in the 10^th position of the VIN indicates the ATV was made in 2012.

Incidents/Injuries

Yamaha is aware of 14 incidents of the front shocks braking apart. No injuries have been reported.

Remedy

Consumers should immediately stop using the recalled ATVs and contact their local Yamaha dealer to schedule a free repair.  Yamaha is contacting its registered owners directly.     

Sold at

Yamaha ATV dealers nationwide from August 2012 to May 2013 for between $6,500 and $7,000.

Distributor

Yamaha Motor Corporation USA, of Cypress, Calif.

Manufactured in

United States

Source:  http://www.cpsc.gov/en/Recalls/Recall-Alerts/2013/Yamaha-Recalls-Big-Bear-ATVs/

There Is No “Industry Standard” Defense To Overtime Claims

In overtime cases, I occasionally have employers try to justify their nonpayment of overtime by arguing that “no one else pays overtime to these types of employees, so why should I?”  That “industry standard” argument doesn’t work.  It’s been rejected by numerous federal courts over the years.

This argument’s sort of like getting stopped for speeding and arguing that you shouldn’t get a ticket because everyone in front of you was speeding too and none of them were stopped.  Well, sorry, the courts have made clear that there is no “industry standard” defense to overtime claims.  The fact that everyone may not be paying overtime to a certain type of employee or that no one’s been dinged on an overtime case for that sort of employee yet does not give your employer a free pass.

Otherwise, this would be great for employers — An entire group of employers could get together and decide that none of them will pay overtime to a certain type of employee, say computer technicians, thus creating the industry standard.  Then, when a computer technician claims that overtime should be paid and sues, the employer can argue that its self-imposed “industry standard” forecloses the claim.  That’s one reason why courts have declined to ever recognize an “industry standard” defense in overtime cases.

Another reason why courts reject an industry standard defense in overtime cases is that an employee’s entitlement to overtime and employer’s liability for liquidated (penalty) damages are supposed to be determined on an employer-by-employer, employee-by-employee basis.  Determining whether an employee should have received overtime pay requires an analysis of that employee’s specific, actual, individual job duties for the employer.  And evaluating whether an employer should be hit with liquidated damages for failing to pay overtime when it should have implicates that specific employer’s decisionmaking process concerning whether it should pay overtime to certain employees.   Industry standards are irrelevant to those case-by-case, specific inquiries.  In fact, one federal court of appeals upheld an award of liquidated damages against an employer precisely because that employer relied on “industry standards” and nothing more and did not conduct an independent analysis of its own in concluding that an employee was not entitled to overtime.