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Whether compensated drive time was working time, to be treated as hours worked, still an open question

By Ronald Miller, J.D.

Cross-motions for summary judgment were denied by a federal district court in Illinois in a dispute regarding whether the time tower technicians spent traveling to and from worksites should be considered working time and included in the calculation of their regular rate for overtime purposes. Although the employer had a custom, practice, or contract with employees to compensate them for traveling as passengers in a company-owned vehicle to and from a jobsite, the court declined to find that the existence of such a custom, practice or contract automatically made drive time into hours worked under the Portal-to-Portal Act as a matter of law. The employer’s motion to decertify the class was also denied (Pietrzycki v. Heights Tower Service, Inc., November 29, 2017, Gilbert, J.).

Daily activity reports. Tower technicians employed by a company that provided services to cellular communications towers sued alleging their employer underpaid its employees for overtime in violation of the FLSA and Illinois Minimum Wage Law (IMWL). Typically, the employer sends a four-person crew consisting of a foreman and three tower technicians to work on each tower. Foremen are responsible for assigning work, supervising tower technicians, and tracking the work performed. To record how much time employees worked in a given week, the employer relied on foremen to fill out daily activity reports (DARs) for their crews. A DAR reports each crew member’s start time, end time, “work hours,” and “travel hours.”

Travel time. The travel time at issue was that time employees spent traveling to and from towers, which could involve a significant distance. Employees have two travel options. First, they are allowed to arrange their own transportation. Typically, this involves driving a personal vehicle or riding in another crew member’s personal vehicle. Alternatively, the employer offered a free transportation option, allowing crew members to travel in a company-owned truck to and from their tower. If employees want to travel in a company-owned truck, they are required to meet at a designated location by a certain time. As a general rule, employees traveled in a company-owned truck and only infrequently traveled in a personal vehicle.

Drive time rate. In 2012, the employer decided to implement the travel time compensation arrangement at issue here by paying $10 per hour for travel hours—the drive time rate. Under the new plan, time spent driving a company-owned vehicle was recorded as work hours. Time spent riding as a passenger was recorded as travel hours, unless the employee performed work while traveling. There was no pay for traveling in personal vehicles. The parties disputed whether the employer consistently paid the drive time rate in accordance with the plan. According to the employees, the employer largely followed the plan, except that it also usually recorded time spent traveling in personal vehicles as travel hours. For its part, the employer argued that foremen distorted the intended policy by recording “travel hours” in a haphazard and inconsistent manner.

Overtime calculations. When determining how many hours employees worked in a given week, the employer excluded all time that was recorded as travel hours and paid at the drive time rate. Similarly, when calculating the overtime rate of pay, the employer excluded all payments at the drive time rate. These two overtime compensation practices were at issue.

Previously, the court had certified a Rule 23 class action for the IMWL claims and a collective action for the FLSA claim. The parties filed cross-motions for summary judgment on the overtime claims, and the employer moved to decertify the Rule 23 class and the FLSA collective actions.

Hours worked. On the merits, the employees claimed that the employer unlawfully undercounted the number of overtime hours they worked. It was undisputed that the employer did not count the “travel hours” that were recorded on the DARs for which the employer paid the “drive time rate” when computing how many hours its employees worked. The employees argued that the employer had the burden of proving drive time was not hours worked. However, the court pointed out that the employees had to show that they performed overtime work for which they were not properly compensated. Only after they established that they actually performed uncompensated work did the employer bear the burden of proving that an exception applied to the general rule that work is compensable under the FLSA.

Custom or practice. The employees’ main argument was that the employer had a custom or practice of paying employees for drive time and accordingly had entered into a nonwritten contract to pay them for drive time. Further, they claimed that this custom or practice was sufficient to make all drive time into hours worked. Conversely, the employer asserted that it did not have a custom, practice, or contract of compensating for drive time, and that drive time cannot count as hours worked because the activity of riding as a passenger in a vehicle was not work.

Although the court agreed with the employees that the employer had a custom, practice, or contract to compensate them for traveling as passengers in a company-owned vehicle to and from a jobsite, it declined to find that the existence of such a custom, practice or contract automatically made drive time into hours worked under the Portal-to-Portal Act as a matter of law. The employees had not shown that drive time should be characterized as anything other than ordinary home-to-work travel.

As to the employer’s position, it repeatedly contended that it did not have a custom or practice of compensating for any travel as passengers. It mostly fell back on its assertion that the drive time arrangement was “not uniformly applied.” However, the court pointed out that a custom or practice can exist even if, at times, the employer deviated from that custom or practice. The employer never actually stated that it routinely failed to pay employees any compensation for traveling as passengers in a company-owned vehicle. Therefore, it the court’s view, the material facts were disputed and showed that the employer had a custom or practice of compensating employees for traveling as passengers in its vehicles. Accordingly, the employer too had not shown that it was entitled to judgment as a matter of law.