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Drive Time, Down Time, and the “All-in-a-Day’s-Work” Rule

By Josef Buenker on March 28, 2018

           We have had the issue of “compensable time” come up in many of our cases. Compensable time is time for which an employee is supposed to be paid.  This issue usually comes up with regard to the activity and non-activity of employees throughout the day and is often a disputed issue in wage and hour cases.  Compensable time is often an issue with regard to driving time and down time during the work day.

Drive Time

            Employees often question whether they are entitled to be paid for time spent driving during the day. The answer is sometimes “yes” and sometimes “no.” Time spent driving from home to the place where the employee begins working is usually not compensable.  For example, a home-health nurse who drives from her home to the first appointment of the day is usually not entitled to payment for that drive time, unless she has already performed work that day (see “All-in-a-Day’s-Work” rule below).  That same nurse, however, is entitled to be paid for drive time between appointments, until she finishes working for the day.  Some workers like this are only paid for the time spent with patients, and some are paid on a per-appointment basis, with no time being kept at all.  Under both of those scenarios, if the employee works more than 40 hours in the week, counting the compensable driving time, the worker is being deprived of overtime pay that she is owed, and could sue to recover the money owed to her.

            On the other hand, a plumber who is required to report to his employer’s shop in the morning to load up the tools, equipment, and/or materials needed for the day’s work, or who is required to drive the employer’s truck to the worksite, should be paid for all time spent driving to the jobsite or first appointment of the day, as well as for the time spent loading up the truck. Also, in addition to the time spent driving between jobsites or appointments, the worker should be paid for the drive back to the shop. However, the construction worker who drives directly to the jobsite at the beginning of the day and drives home at the end of the workday is not entitled to be paid for that drive time.

Down Time

            Some employees experience “down time” during the work day when they are not actually performing work for the employer, and sometimes their employer does not want to pay them for such time.  We have seen this in the context of car wash workers who are required to clock out when it rains and no cars are coming in to be washed, even though the employees are not allowed to leave the premises.  We have also seen this with restaurant workers who are required to clock out for two hours, between the lunch hour and preparation for the dinner service, but are required to stay on the premises during that time.  These employees who are required to stay on the premises and cannot really do anything productive such as run errands during their down time should be paid for that time.

            The more difficult questions arise for employees who work away from their employer’s place of business and who sometimes have extended periods of time between appointments.  This is a common issue with workers who have service calls with customers, such as cable television installers.  These individuals are often paid on a per-installation basis instead of hourly, so they are not paid for the time spent waiting for their next appointment. The essential question in this situation is whether the employee can effectively use their time for their own benefit: If, for instance, the employee has to wait for 30 minutes, an hour, or even two hours for the next appointment, she is generally entitled to have that time counted as work time toward overtime calculation.  The employee generally does not have control over scheduling and should not be punished for time periods between appointments.  If, on the other hand, the employee has extended periods of time, such as 3-4 hours, between appointments, she might not be able to count that as compensable time, because she could use that time for her own personal benefit, such as shopping, running errands, and the like.

The All-in-a-Day’s-Work Rule

            The “All-in-a-Day’s Work” rule is the general legal rule that all time between when an employee first starts working and when the employee stops working is compensable time, or time for which the employee should be paid.  This rule is not absolute – meal breaks when the employee is completely relieved of their duties are not compensable.  The long breaks in the day discussed in the first paragraph must also be considered and may not be compensable.  However, an employee who is required to spend time downloading or calling in to get his assignments for the day and map them out, or perform other such preliminary work, must generally be paid from the time they started that task until the end of the work day.  We have seen a number of instances where the employer wants to start the employee’s time when they arrive at the first appointment, which may be an hour or more after the employee actually starts working when she logs into the employer’s computer system or checks email to get her schedule for the day.  Similarly, some employers want to stop tracking time at the end of the last appointment, even though the employee has to upload information from the day’s work or finish paperwork such as nurse’s notes after arriving home.  Most of the time, the employee should be paid until all the work is done for the day.

            It can be difficult for an employee to know what work or time he or she is entitled to be paid for, and what monetary recovery they might be able to get from their employer.  Consulting an attorney experienced in wage and h

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