Wednesday, June 29, 2011

When Your Employer Must Pay for Your Travel Time

In general, an employer does not need to compensate you for time spent traveling that is a normal commute from home to work and back. However, there are a couple of key exceptions. Under California law, one exception is when an employer requires you to take company-provided transportation and you are subject to the control of the employer. See Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000).

In the Morillion case, the employer, Royal Packing Co., required its employee farm workers to meet for work each day at parking lots or assembly areas. Id. at 579. From these departure points, Royal transported employees to their job sites in busses which Royal provided and for which Royal paid, and returned them to the departure points at the end of the each day. Id. The employees were prohibited from using their own transportation to get to the job sites. Id. The California Supreme Court found the level of Royal’s control over its employees meant they should have been on the clock while on the busses, since the employees could not commute to the job sites on their own, decide which route to take, or which mode of transportation to use. Id. at 586-87. The Morillion decision means that an employer must compensate employees for their compulsory travel time, including time spent waiting for your employer’s transportation to take you to work. See id. at 587.

It is true that an employer may provide and require you to take a company vehicle without having to compensate you for travel time. However, if the employer subjects you to restrictions, such as not permitting personal stops, forbidding you from picking up passengers, and forbidding the use of a cell phone except to answer calls from company headquarters, the employer may be liable for that travel time. See Rutti v. Lojack Corp., Inc., 596 F.3d 1046, 1061-62 (9th Cir. 2010).

In general, if you take advantage of optional company-provided transportation, your employer does not need to pay you for travel time. See Overton v. Walt Disney Co., 136 Cal. App. 4th 263, 271 (Cal. Ct. App. 2006). For example, Disney did not have to compensate employees for the time they spent on a free, optional shuttle bus provided by Disney from the employee parking lot to the entrance of Disneyland. Id. The Disneyland employees could take alternative forms of transportation, such as taking public transportation, a vanpool, or getting dropped off, so they were not under Disney’s control. Id.

You might also be entitled to compensation for travel time under the federal Fair Labor Standards Act if you perform any work that is deemed to be an “integral and indispensable” part of your main work activities. D A & S Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552, 555 (10th Cir. 1958). Such activities include picking up and transporting necessary equipment or receiving work instructions at a meeting point prior to traveling to the work site. See, e.g., Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1289 (10th Cir. 2006). Furthermore, you should almost always get paid for travel time from job site to job site in a single day, assuming that such travel is not a part of your normal commute from home to the normal job site, or between home and the first or last job site. See Wirtz v. Sherman Enterprises, Inc., 229 F. Supp. 746, 753 (D. Md. 1964). For example, employees who install cable, make repairs to telephone lines, inspect houses, or wait to receive the next limousine driving assignment are all entitled to be paid for the time they spend getting to one work site to another. See Steelman v. Telco Tel. Co., 2001 WL 21361, at *1, 3 (D. Or. Jan. 5, 2001); Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524, 1527-28 (Cal. Ct. App. 2008).

If you believe you are not receiving proper compensation for travel time between job sites, or for travel time where your employer requires you to meet at mandatory location prior to traveling to your job site, or if your employer restricts what you do when you travel to or from work, or imposes work requirements on you during this travel time, please contact Bryan Schwartz Law.

Monday, June 6, 2011

For Government Contract Employees, Your Employer is Not Just Who Signs the Paycheck

You were interviewed and hired by a private firm, but sent to work at a government agency as a government contractor. You report your hours, receive healthcare benefits, and receive your paycheck from the firm, but your office is at the government agency. The growth and popularity of government contract workers at various local and federal government agencies may lead to confusion about who is technically the “employer.” When government contract employees have an unlawful termination claim, whether due to discrimination or harassment, whistleblower, retaliation, or overtime and other wage claims, both the private firm and the government agency could be on the hook as joint employers. Thus, a government contractor should pursue his or her claims against both entities if either the private sector employer or government agency mistreated the employee and violated state or federal law.

Courts determine whether a contract worker is deemed a government employee for purposes of an employment discrimination lawsuit by looking at whether the employer “has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Lopez v. Johnson, 333 F.3d 959, 963 (9th Cir. 2003) (citing Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000) (internal citations omitted)); Strolberg v. Akal Sec. Co., 2005 WL 5629026, at *6 (D. Idaho Jan. 19, 2005). The courts look at “the extent of the employer’s right to control the means and manner of the worker’s performance [as] a primary factor,” as well as other factors including whether the employer furnished the employee’s equipment and place of work, the length of time the employee worked, and whether the work was an integral part of the employer’s business. Lopez at 962-63 (citing Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir. 1980) and Mitchell v. Frank R. Howard Mem’l Hosp., 853 F.2d 762, 766 (9th Cir. 1988)).

In Strolberg v. Akal Sec. Co., the court found employees of Akal Security Co., a private security company, to also be government employees of the United States Marshal’s Service (“USMS”) for purposes of a claim under the Rehabilitation Act – even though the USMS had limited control over the terms and conditions of the employees’ work. Strolberg at *1. Akal Security was responsible for managing court security officers’ (“CSO”) work hours and assignments, payment of salaries, and scheduling of vacation, discipline, and performance of services. Id. at 7. Also, the USMS did not normally direct CSOs’ activities nor have intent to enter into an employment relationship. Id. at *8. Yet, the court found the USMS to be the CSOs’ joint employer. Id. Examples indicating that the USMS was a joint employer included the USMS providing training; furnishing radio, weapons, handcuffs, and identification; determining routes, schedules, and operating procedures for CSO patrols and stations; and providing the premises where the CSOs worked. Id. at *7-8. The USMS could not directly fire CSOs, but could evaluate CSOs and direct CSOs in the event of emergencies. Id. at *8. The Strolberg case shows that the employer need not control everything about the contract worker’s employment, but just some significant aspect of it.

Be cautioned: the government may well try to tell you that you are not its employee, and that you have no right to file claims against it. Do not believe it. You should make sure that you register a complaint with the proper government authorities very quickly after you suffer an adverse employment action, because the government tends to have very short deadlines for filing complaints. Often, if you do not file against the government quickly, you will lose the right to hold the government accountable.

In one example, Bryan Schwartz Law’s client Garnett Gebhardt sought to hold both the U.S. Department of Energy (“DOE”) and Northrop Grumman liable as joint employers for her claims of harassment and discrimination. Gebhardt v. Chu, 2010 WL 5211459, at *1 (N.D. Cal. Dec. 16, 2010). While contracting firm Northrop Grumman signed Ms. Gebhardt’s paychecks and provided employee benefits, Ms. Gebhardt worked in DOE facilities, used a DOE email address, and worked directly under a Senior Counterintelligence Officer and federal employee. Id. With limited exceptions, Equal Employment Opportunity Commission (“EEOC”) regulations require that federal employees (or federal contract employees) consult with the proper Equal Employment Opportunity (“EEO”) counselor at the agency within 45 days of the matter alleged to be discriminatory in order to file a civil suit. Id. at *6.

In the Gebhardt case, although (before hiring Bryan Schwartz Law) Ms. Gebhardt complained to DOE officials and attempted multiple times to contact a DOE Human Relations Specialist in order to properly file an EEO complaint, the DOE took the position that Ms. Gebhardt never properly filed an administrative complaint against it. Id. at *3-4. The DOE argued that the DOE Human Resources Specialist was not an “EEO” official that was logically connected with the EEO process. *9. The DOE also argued that if there was an EEO complaint filed by Ms. Gebhardt, she had directed it to Northrop Grumman and not the DOE. Id. at 10. However, Bryan Schwartz Law successfully convinced the court that it should reject the DOE’s arguments that Ms. Gebhardt’s complaints were untimely (under the legal principle of equitable tolling) because Ms. Gebhardt and her counsel were told by the DOE that her complaint was being handled, even though it was not. Id. at *13.

Though Bryan Schwartz Law ultimately succeeded in saving her claims against the DOE, the Gebhardt case shows how important it is to be quick and persistent in pursuing your employment claims with the appropriate channels at both your government agency and contracting firm. The agency or firm may mislead you into filing a complaint with one employer only, or with an individual or office not charged with handling EEO complaints.

If you are unsure who your “employer” is or where to file a complaint, you could very well have joint employers and should pursue action against both. In particular, if you are a government contractor and you have a discrimination, whistleblower, or wage and hour claim arising out of either your contracting firm or government agency, please contact Bryan Schwartz Law.