[House Report 104-585]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 104-585
_______________________________________________________________________
USE OF EMPLOYER VEHICLES
_______
May 20, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Goodling, from the Committee on Economic and Educational
Opportunities, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1227]
[Including cost estimate of the Congressional Budget Office]
The Committee on Economic and Educational Opportunities, to
whom was referred the bill (H.R. 1227) to amend the Portal-to-
Portal Act of 1947 relating to the payment of wages to
employees who use employer owned vehicles, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. PROPER COMPENSATION FOR USE OF EMPLOYER VEHICLES.
Section 4(a) of the Portal-to-Portal Act of 1947 (29 U.S.C. 254(a))
is amended by adding at the end the following: ``for purposes of this
subsection, the use of an employer's vehicle for travel by an employee
and activities performed by an employee which are incidental to the use
of such vehicle for commuting shall not be considered part of the
employee's principal activities if the use of such vehicle for travel
is within the normal commuting areas for the employer's business or
establishment of the use of the employer's vehicle is subject to an
agreement on the part of the employer and the employee or
representative of such employee.''.
SEC. 2. EFFECTIVE DATE.
The amendment made by section 1 shall take effect on the date of
the enactment of this Act and shall apply in determining the
application of section 4 of the Portal-to-Portal Act of 1947 to an
employee in any civil action brought before such date of enactment but
pending on such date.
Purpose
The purpose of H.R. 1227 is to amend the Portal-to-Portal
Act of 1947 relating to the payment of wages to employees who
use employer-provided vehicles.
Committee Action
H.R. 1227 was introduced by Representative Harris W. Fawell
on March 14, 1995. The Subcommittee on Workforce Protections
held a hearing on H.R. 1227 on November 1, 1995. The witnesses
who testified at the hearing were: Mr. Jack Herbert, McAllister
Fuels Service Company, Pennsauken, New Jersey; Mr. Patrick T.
Jopek, President, Merit Mechanical Systems, Inc., Darien,
Illinois; and Mr. Manny Maderos, International Brotherhood of
Electrical Workers.
On December 13, 1995, the Subcommittee on Workforce
Protections approved H.R. 1227 by voice vote and ordered the
bill favorably reported to the Full Committee. On March 21,
1996, the Committee on Economic and Educational Opportunities
ordered the bill favorably reported to the House of
Representatives by voice vote with an Amendment in the Nature
of a Substitute.
Explanation of Amendments
The Amendment in the Nature of a Substitute which was
adopted by the Committee on Economic and Educational
Opportunities on March 21, 1995, is explained in this report.
Committee Statement and Views
Background
On August 5, 1994, the U.S. Department of Labor's Wage and
Hour Division issued an opinion letter in response to an
investigation regarding the compensation of travel time for
employees who travel to and from work in employer-provided
vehicles.\1\ In the letter, the Department of Labor ruled that
the time spent by an employee traveling from home to the first
work assignment, or returning home from the last assignment,
was similar to that of traveling between jobs during the day
and therefore represented a principal activity, which must be
compensated. No compensation would be required in cases where
employees used their own personal vehicles.
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\1\ U.S. Department of Labor, Wage and Hour Division, Opinion
Letter dated August 5, 1994 (hereinafter ``August 1994 opinion
letter'').
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The policy was based on the Portal-to-Portal Act of 1947
\2\ which sets forth the requirements for determining whether
an employee must be compensated for an activity which occurs
before (``preliminary'') or after (``postliminary'') the
principal activity for which the employee is employed to
perform. Examples of these types of activities are: walking,
riding, or traveling to and from the actual place of the
performance of work; checking in or out and waiting in line to
do so; changing clothes; washing up, showering, or bathing; and
retrieving or returning tools of the trade. Such activities can
be considered to be part of an employee's principal activities,
depending on the individual facts of each case. For example,
miners who must travel substantial distances underground before
beginning work are more likely to be compensated for travel
time than are individuals walking from a parking area to the
factory.
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\2\ 29 U.S.C. Sec. 251-262.
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The August 1994 opinion letter interfered with what is the
customary practice in many industries, whereby employees
commute directly from home to the job site and use of the
company vehicle for such commuting is a matter of convenience
for both the employer and the employee. A significant number of
companies operate programs where employees are allowed to use
company vehicles for this purpose. As Mr. Jack Herbert
testified before the Subcommittee on Workforce Protections:
For many years, servicemen and women have had the use
of company vehicles to commute to and from their homes
without charge. This practice, while voluntary, is
eagerly chosen by virtually all servicemen and women
because of its significant benefit to them. This
practice is used throughout the oil heat industry and
many other service industries.
In response to numerous letters from Members of Congress
expressing concern and opposition to the Department of Labor's
position, the Department of Labor suspended enforcement of the
August 1994 opinion letter.\3\ The Department of Labor
subsequently issued a revised opinion letter on April 3,
1995,\4\ withdrawing the August 1994 opinion letter and
modifying its position on the issue.
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\3\ Letter dated October 19, 1994, from Secretary Robert B. Reich,
U.S. Department of Labor, to the Honorable William D. Ford, Chairman of
the Committee on Education and Labor, U.S. House of Representatives.
\4\ U.S. Department of Labor, Wage and Hour Division, Opinion
Letter dated April 3, 1995 (hereinafter ``April 1995 opinion letter'').
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The April 1995 opinion letter held that time spent
traveling between the employee's home and the first work site
of the day and between the last work site of the day and the
employee's home need not be compensated if: (1) driving the
employer's vehicle between the employee's home and work sites
at the start and end of the workday is strictly voluntary and
not a condition of employment; (2) the vehicle involved is the
type of vehicle which would normally be used for commuting; (3)
the employee incurs no costs for driving the employer's vehicle
or parking it at the employee's home or elsewhere; and (4) the
work sites are within the normal commuting area of the
employer's establishment.
The Committee recognizes that the April 1995 opinion letter
is a retreat from the policy which was put forth by the
Department of Labor in the August 1994 opinion letter, yet a
number of issues remain unclear. The Department of Labor's most
recent position would allow employers to treat travel from home
to the first work site and from the last work site to home as
ordinary, noncompensable commute time. However, in order for an
employer not to count commute time in a company vehicle as
compensable, all of the conditions delineated in the April 1995
opinion letter must be met. Those employers who do not meet
each of the requirements may be vulnerable to back pay lawsuits
by both the Department of Labor and employees.
In addition, the Committee believes that because the
Department of Labor has, within a short time period, issued two
different opinions as to how the Portal-to-Portal Act applies
to this area points to the need for clarifying legislation.
Indeed, given the Department of Labor's inconsistency, courts
may give little weight to the Department of Labor's current
interpretation (see, e.g. Teddy W. Baker, et al., v. GTE North
Incorporated (No. 3:94-CV-885RM) N.D. Indiana 1996). Thus it is
important for Congress to clarify the intention of the Portal-
to-Portal Act with regard to employee use of employer-provided
vehicles for commuting.
Legislation
H.R. 1227 provides clarification regarding the use of an
employer-provided vehicle for travel from an employee's home to
the first work location at the start of the workday and from
the last work location to the employee's home at the end of the
workday. Such travel is not considered to be part of the
employee's principal activities and therefore, the time spent
in such commuting is not required to be compensated under the
Fair Labor Standards Act of 1938.\5\ The limitation applies
only if the use of the vehicle is within the normal commuting
area for the employer's business or establishment and the use
of the employer's vehicle is subject to an agreement between
the employer and the employee or employee's representative.
This clarification regarding an employee's ``principal activity
or activities'' applies as well to activities performed by an
employee which are incidental to the use of the employer-
provided vehicle for travel by the employee at the beginning
and end of the workday.
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\5\ 29 U.S.C. Sec. 201-219.
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H.R. 1227 does not apply to time spent traveling between
job sites. H.R. 1227 is an amendment to section 4(a) of the
Portal-to-Portal Act. Section 4(a) applies only to activities
``which occur either prior to the time on any particular
workday at which such employee commences, or subsequent to the
time on any particular workday at which he ceases'' the
principal activity or activities. Thus it is not necessary to
repeat in H.R. 1227 that the language only applies to travel
time which occurs at the beginning and end of the workday.
H.R. 1227 requires that in order for the travel time to be
considered noncompensable, the use of the vehicle by the
employee must be conducted under an agreement between the
employer and employee or the employee's representative. This
requirement is intended to balance the interests of both the
employer and the employee while permitting maximum flexibility
under the law. While H.R. 1227 does not require a written
agreement, this requirement may be satisfied through a formal
written agreement between the employee and employer, a
collective bargaining agreement between the employee's
representative and the employer, or an understanding based on
established industry or company practices.
The April 1995 opinion letter establishes a requirement
that in order for an employee's travel time to be considered
noncompensable, the work sites must be located within the
normal commuting area of the employer's establishment. The same
test is used in H.R. 1227. Some have suggested that there
should be a specific mileage limit, such as 30 miles. There are
a variety of problems in trying to establish a specific mileage
limit. Differences between urban, suburban and rural locations
make a relationship between the distance traveled and the time
involved impossible. Employees may reside outside of the
service area where they are employed and employers may or may
not maintain a physical establishment in the area.
H.R. 1227 limits noncompensable travel to travel between
the employee's home and work sites within the normal commuting
area of the employer's establishment or service area. This
language is intended to recognize the differences that exist
between geographic regions, industries, etc. that cannot be
easily defined. H.R. 1227 is not intended to address travel
outside the normal commuting area.
Activities which are merely incidental to the use of an
employer-provided vehicle for commuting at the beginning and
end of the workday are similarly not considered part of the
employee's principal activity or activities and therefore need
not be compensable. It is not possible to define in all
circumstances what specific tasks and activities would be
considered ``incidental'' to the use of an employer's vehicle
for commuting. Communication between the employee and employer
to receive assignments or instructions, or to transmit advice
on work progress or completion, is required in order for these
programs to exist. Likewise, routine vehicle safety inspections
or other minor tasks have long been considered preliminary or
postliminary activities and are therefore not compensable.
Merely transporting tools or supplies should not change the
noncompensable nature of the travel. The Committee expects that
the Department of Labor will provide guidance in this area,
consistent with the purposes of H.R. 1227.
It is important to address two issues which are not
specifically covered by H.R. 1227 but have been raised in
conjunction with it. The first issue concerns the type of
vehicle used for commuting. To be considered noncompensable
travel time, the courts and the Department of Labor have
generally considered that driving a company vehicle be similar
to commuting in a private vehicle. The fact that a vehicle may
have been modified for special purposes, displays company
logos, or is specially equipped does not alter the nature of
such travel.
While H.R. 1227 does not specifically address this issue,
it is the intent of the Committee that the vehicle should be of
a type that does not impose substantially greater difficulties
to operate than the type of vehicle which would normally be
used for commuting. The fact that the vehicle may have been
modified to meet the employer's specifications or requirements
should not be considered a determining factor.
The second issue concerns cost to the employee for use of
the employer's vehicle. It is the intent of the Committee that
the employee incur no out-of-pocket or direct cost for driving,
parking or otherwise maintaining the employer's vehicle in
connection with commuting in employer-provided vehicles.
However, the employer shall not be responsible for unrelated
expenses, such as an employee's tax liability under the
provisions of the Internal Revenue Code which may result from
the employee's personal use of the employer's vehicle or for
traffic violations resulting from the improper operation of the
vehicle by the employee.
Section 2 of H.R. 1227 makes the bill effective upon
enactment and applicable to civil actions pending on the date
of enactment, in which a final decision has not been entered.
It clarifies a provision of the law that has been the subject
of inconsistent and contradictory interpretations by the
Department of Labor and the courts. The purpose of H.R. 1227 is
to clarify the intent of the Portal-to-Portal Act as it applies
to employee use of employer-provided vehicles for commuting at
the beginning and end of the workday. It is therefore
appropriate to apply the clarification to pending cases, as
well as to future programs established by employers and
employees. H.R. 1227 addresses a provision of law that has been
ambiguous and the source of conflicting and contradictory
interpretations by the Department of Labor. Thus, it is fair
and reasonable to apply the clarification to pending cases as
well as to any future situations.
Summary
H.R. 1227, as amended, would amend the Portal-to-Portal Act
of 1947 to clarify that use of an employer's vehicle for travel
by an employee and any incidental activities performed by an
employee which are related to the use of the vehicle for
commuting shall not be considered to be part of the employee's
principal activities if: (1) the use of the vehicle is subject
to an agreement between the employer and the employee or
representative of such employee; and (2) the vehicle is used
for travel within the normal commuting area for the employer's
business or establishment. The legislation would take effect
upon enactment and would apply to any case in which a final
judgment has not been entered.
Section-by-Section Analysis
Section 1. Proper compensation for use of employer vehicles
This provision would add language to the end of section
4(a) of the Portal-to-Portal Act of 1947 to specify that the
use of an employer's vehicle for travel by an employee and
activities performed by an employee which are incidental to the
use of the vehicle for commuting shall not be considered to be
part of the employee's principal activities if the use of such
vehicle for travel is within the normal commuting area for the
employer's business or establishment and the use of the vehicle
is subject to an agreement between the employer and the
employee or representative of the employee.
Section 2. Effective date
This section provides that H.R. 1227 would take effect upon
the date of enactment and would apply in determining the
application of section 4 of the Portal-to-Portal Act of 1947 to
an employee in any civil action brought before or on the date
of enactment.
Explanation of Amendment
The Amendment in the Nature of a Substitute is explained in
this report.
Oversight Findings of the Committee
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives and clause 2(b)(1) of
rule X of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in the body of this report.
Inflationary Impact Statement
In compliance with clause 2(l)(4) of rule XI of the Rules
of the House of Representatives, the Committee estimates that
the enactment into law of H.R. 1227 will have no significant
inflationary impact on prices and costs in the operation of the
national economy. It is the judgment of the Committee that the
inflationary impact of this legislation as a component of the
federal budget is negligible.
Government Reform and Oversight
With respect to the requirement of clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations form the Committee on Government Reform and
Oversight on the subject of H.R. 1227.
Committee Estimate
Clause 7 of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs which would be incurred in carrying out
H.R. 1227. However, clause 7(d) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 403 of the Congressional Budget Act of 1974.
Application of Law to Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act (CAA), requires a description of the
application of this bill to the legislative branch. This bill
amends the Portal to Portal Act of 1947 as it relates to the
payment of wages to employees who use employer owned vehicles.
Consistent with Section 225 of the CAA and Section C501.106 of
the Regulations submitted by the Office of Compliance and
adopted by the House of Representatives on April 15, 1996, the
Portal to Portal Act is applicable to the legislative branch in
that it defines and delimits the rights and protections of the
Fair Labor Standards Act which is made applicable to the
legislative branch by the CAA under section 102. Hence, the
provisions of this bill which amend the Portal to Portal Act
apply to the legislative branch.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act requires a statement of whether the provisions of
the reported bill include unfunded mandates. The Committee
received a letter regarding unfunded mandates from the Director
of the Congressional Budget Office and has such the Committee
agrees that the bill does not contain any unfunded mandates.
See infra.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirement of clause 2(l)(3)(B) of
rule XI of the House of Representatives and section 308(a) of
the Congressional Budget Act of 1974 and with respect to
requirements of clause 2(l)(3)(C) of rule XI of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 1227 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 3, 1996.
Hon. William F. Goodling,
Chairman, Committee on Economic and Educational Opportunities, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 1227, a bill to amend the Portal-to-Portal Act of
1947 relating to the payment of wages to employees who use
employer-owned vehicles, as ordered reported by the Committee
on Economic and Educational Opportunities on March 21, 1996.
CBO estimates that enactment of the bill would have no
significant effect on federal spending. H.R. 1227 contains no
intergovernmental or private sector mandates as defined in
Public Law 104-4, and would impose no direct costs on state,
local, or tribal governments. The bill could in fact save
federal, state and local governments and private sector
employers money by reducing payroll liabilities.
The bill would amend the Portal-to-Portal Act by clarifying
that incidental commuting time an employee spends in an
employer-owned vehicle shall not be considered to be part of
the employee's principal activities, provided that the use of
the employer's vehicle is subject to an agreement between the
employer and the employee, and that the travel is within the
normal commuting area for the employer's business. It would
reduce potential liability of employers, particularly in the
state and local government sector.
Current law does not classify commuting time as a principal
employment activity. However, some employees argue that because
a vehicle is employer-owned, commuting time spent in such a
vehicle should be subject to minimum wage and maximum hour
requirements. In April 1995, the Wage and Hour Division of the
Department of Labor retracted an earlier opinion that would
have required compensation for such commuting time (The earlier
opinion was not being enforced at the time that it was
retracted). Consequently, many employers do not factor in
commuting time when computing a worker's compensation.
Currently, a number of cases are pending that could affect
state and local governments whose employees commute in
government-owned vehicles. If, under current law, the courts
determine that the time spent commuting in a company vehicle
and on incidental activities is subject to compensation, state
and local governments would face additional costs. H.R. 1227
would eliminate this potential liability.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christi
Hawley.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SECTION 4 OF THE PORTAL-TO-PORTAL ACT OF 1947
Part III
future claims
Sec. 4. Relief From Certain Future Claims Under the Fair
Labor Standards Act of 1938, As Amended, the Walsh-Healey Act,
and the Bacon-Davis Act.--
(a) Except as provided in subsection (b), no employer shall
be subject to any liability or punishment under the Fair Labor
Standards Act, on account of the failure of such employer to
pay an employee minimum wages, or to pay an employee overtime
compensation, for or on account of any of the following
activities of such employee engaged in on or after the date of
the enactment of this Act--
(1) walking, riding, or traveling to and from the
actual place of performance of the principal activity
or activities which such employee is employed to
perform, and
(2) activities which are preliminary to or
postliminary to said principal activity or activities,
which occur either prior to the time on any particularly
workday at which such employee commences, or subsequent to the
time on any particular workday at which he ceases, such
principal activity or activities. For purposes of this
subsection, the use of an employer's vehicle for travel by an
employee and activities performed by an employee which are
incidental to the use of such vehicle for commuting shall not
be considered part of the employee's principal activities if
the use of such vehicle for travel is within the normal
commuting area for the employer's business or establishment and
the use of the employer's vehicle is subject to an agreement on
the part of the employer and the employee or representative of
such employee.
* * * * * * *
MINORITY VIEWS
We oppose H.R. 1227, as reported, because it effectively
eliminates the right of workers to choose how they will commute
to work, eliminates the ability of workers to exercise
discretion over what they do while they are commuting, and
allows employers to require employees to work off the clock,
without being paid for their services. At a time when
corporations are making historic profits, while working
families are seeing their wages decline, the Republican
Majority is seeking to enact legislation that deprives
employees of their personal time and hard-earned money.
The reported bill amends the Fair Labor Standards Act
(FLSA) to allow employers to require workers to perform work
without being paid for it. We are struck by the irony that a
majority of the Republican Members of Congress oppose
increasing the minimum wage, but, as evidenced by this
legislation, are perfectly willing to take the time and effort
to make sure that work does not always pay.
H.R. 1227, as introduced, was originally described as
seeking to do no more than codify the Department of Labor's
April 3, 1995, opinion letter (hereinafter referred to as the
``April 30 DOL opinion'') which specified when an employee must
be compensated for commuting in an employer-owned vehicle.
That letter provided four conditions that must be met if an
employee is not to be compensated for time commuting between
home and work in an employer's vehicle:
The employee must voluntarily choose to use the employer's
vehicle.
The employee cannot incur costs as a result of using the
employer's vehicle.
The vehicle must be of a type that is normally used for
commuting.
The commute must be within normal commuting distance.
For numerous reasons, H.R. 1227, as reported bears little
resemblance to the Department of Labor's policy. First, the
bill permits an employer to compel an employee to agree to use
the employer's vehicle for commuting purposes, as a condition
of employment. The Majority asserts that it has been customary
in many industries for employees to use employer vehicles for
commuting purposes without being compensated for that time. The
Majority cites the testimony of Mr. Jack Herbert:
For many years servicemen and women have had the use
of company vehicles to commute to and from their homes
without charge. This practice, while voluntary, is
eagerly chosen by virtually all servicemen and women
because of its significant benefit to them (emphasis
added).
The Majority's choice of quotes is interesting because it
points out a principal difference between what has been
customary (truly voluntary employee decisions) and what is
allowed under H.R. 1227 (compelled use of an employer's
vehicle). The bill explicitly provides that use of an
employer's vehicle for commuting purposes is not compensable if
``the use of the employer's vehicle is subject to an agreement
on the part of the employer and the employee.'' Further, the
Majority's views specify that such an agreement need not be in
writing, but may rest on ``an understanding based on
established industry or company practice.'' Notably, during
Committee markup, the Majority specifically rejected an
unambiguous amendment offered by Representative Andrews (D-NJ)
providing that such agreement must be knowing and voluntary,
and may not be required as a condition of employment. The
Majority chose to leave H.R. 1227 weak on the issue of employee
voluntariness, preferring to grant employers wide latitude to
impose, as a condition of employment, non-voluntary and non-
compensable employee use of the employer's vehicle.
Second, H.R. 1227, as reported, provides that an employee
may be required to perform any duties ``incidental'' to the use
of the vehicle without compensation for that time. The Majority
states in its views,
Activities which are merely incidental to the use of
an employer-provided vehicle . . . are similarly not
considered part of the employee's principal activity or
activities and therefore need not be compensable. It is
not possible to define in all circumstances what
specific tasks and activities would be considered
``incidental'' to the use of the employer's vehicle for
commuting.
The Majority goes on to state that activities such as
``routine vehicle safety inspections or other minor tasks have
long been considered preliminary or postliminary activities and
are therefore not compensable'' (emphasis added).
The Majority's characterization that such activities have
long been considered ``incidental'' and therefore non-
compensable under current law is simply not true. The Fifth
Circuit, in Dunlop v. City Elec., Inc., 527 F.2d. 394,
articulated the parameters between ``incidental'' and
``principal'' activities:
. . . Decisions construing the Portal-to-Portal Act
in conjunction with the F.L.S.A. [Fair labor Standards
Act] make clear that the excepting language of section
4 was intended to exclude from F.L.S.A. coverage those
activities ``predominantly . . . spent in [the
employees'] own interests.'' [Jackson v. Air Reduction
Co., 402 F.2d 521, 523 (6th Cir. 1968).] No benefit may
inure to the company. [Blum v. Great Lakes Carbon
Corp., 418 F.2d 283, 287 (5th Cir. 1969).] The
activities must be undertaken ``for [the employees']
own convenience, not being required by the employer and
not being necessary for the performance of their duties
for the employer.'' [Mitchell v. Southeastern Carbon
Paper Co., 228 F.2d 934 (5th Cir. 1955).] The exemption
was not intended to relieve employers from liability
for ``any work of consequence performed for an
employer'' [(Secretary of Labor v. E.R. Field, Inc.,
495 F.2d 749 (1st Cir. 1974)], from which the company
derives ``significant benefit''. [Cherup v. Pittsburgh
Plate Glass Company, 350 F. Supp. 386, 391 (N.D. W. Va.
1972)].
In Dunlop, as quoted in Teddy W. Baker, et al., v. GTE
North Incorporated (the case referenced in the Majority's
views):
The Fifth Circuit . . . found that the plaintiff
electricians' pre-shift activities, including filling
out time, material, and supply and cash requisition
sheets, checking job locations, cleaning out and
loading their trucks with the necessary materials,
fueling the trucks, and picking up the electrical plans
for the day's jobs, were ``within the broad range of
`principal activities' performed at their employer's
behest and for the benefit of the business.'' [Teddy W.
Baker, et al., v. GTE North Incorporated, No. 3:94-CV-
885RM, (N.D. Indiana 1996) at page 13.] (emphasis
added).
Therefore, in light of overwhelming case law establishing
that the determinative question is who benefits from the
activities rather than whether the activities are
``preliminary'' or ``postliminary,'' we are wholly unpersuaded
by the Majority's assertion about what ``incidental'' means.
Third, beyond denying employees compensation for services
for which employers must pay under current law, H.R. 1227, as
reported, effectively enables employers to transfer to
employees the costs of maintaining the employer's vehicle. The
Majority's views state that ``It is the intent of the Committee
that the employee incur no out-of-pocket or direct cost for
driving, parking or otherwise maintaining the employer's
vehicle . . .''. If that is, in fact, the intent of the
Committee, we question why the Majority did not agree to
include such a limitation within the plain language of the
statute. Again, the Republican Majority rejected the Andrews
amendment which expressly codified the April 3 DOL opinion by
providing that employees would incur ``no cost for driving,
parking, or otherwise maintaining such vehicle.''
Nowhere within the plain language of the legislation is
there any restriction regarding the assumption of cost of the
use of the employer's vehicle by the employee. Indeed, assuming
the ``agreement'' between the employer and the employee (which,
again, may be imposed as a condition of employment) required
the employee to assume costs associated with the operation of
the vehicle, there is no basis within the plain language of the
legislation for a court to reach any conclusion other than that
use of the employer's vehicle remains outside of the employee's
principal activities. Further, the fact that the Committee
specifically requested an amendment including such a limitation
is more persuasive legislative history than the legislative
dicta contained in the Majority's views. Rather than
``codifying'' the April 3 DOL opinion, the Majority opted to
muddy matters.
Fourth, H.R. 1227, as reported, effectively permits an
employer to require the employee to use any vehicle, from a
farm tractor to 16-wheel tractor trailer, for commuting
purposes. The Majority views state that ``it is the intent of
the Committee that the vehicle should be of a type that does
not impose substantially greater difficulties to operate than
the type of vehicle which would normally be used for
commuting.'' The plain language of H.R. 1227, however, includes
no limitation whatsoever on what kind of vehicle may be used
for commuting purposes. The Andrews amendment would have made
the provision clear by requiring that vehicles used for
commuting purposes be ``of a type that does not impose
substantially greater difficulties to drive than the type of
vehicle that is normally used by employees for commuting.'' The
Republican Majority rejected that clarification, too.
H.R. 1227 applies retroactively to pending litigation,
notwithstanding the fact that the bill bears little
relationship to the April 3 DOL opinion, or to any other
previous policy enunciated by the Department of Labor regarding
the treatment of time spent commuting in an employer-owned
vehicle. In short, the bill substantially modifies current law
and intentionally seeks to immunize employers who violated the
law.
The original theory behind the exemption for commuting time
was that an employee who is commuting to and from work is on
his or her own time. The employee may choose the means by which
he or she commutes. The employee may chose the route by which
to go. The employee may perform any errand of his or her choice
on the way to, or from, work. The employee may pick up and drop
off passengers as he or she desires. In short, other than being
required to be at a certain place by a certain time, the
employee's commuting time has nothing to do with the employer.
It is the employee's own time to do with as he or she sees fit.
In such circumstances, regardless of whether the employee is
using his or her own vehicle or the employer's, the employer
should not be required to compensate the employee. No one
contends otherwise.
Under this legislation, however, it is the employer, and
not the employee, who can control and manipulate the employee's
commuting time. Here is the most obvious example of how an
employee's discretion is compromised: It is extremely common
for parents to drop off their children at school on the way to
work. For insurance reasons, however, employers restrict the
use of their vehicles to ``employees only''; non-employee
passengers in such vehicles are uniformly prohibited.
Therefore, an employee who can be required to use an employer's
vehicle to commute to work, pursuant to this legislation, is
also effectively prohibited from engaging in the very common
and often necessary family task of dropping off his or her
child at school on the way to work.
No one contends that this legislation confers upon an
employee the free use of the employer's vehicle. Employers have
a legitimate interest in regulating the use of their vehicles
and typically do so. Employees are not generally permitted to
use the vehicles for personal errands; rather they are
restricted to using them only to travel to, and from, the job
site. Employers also regularly and typically restrict the kinds
of activities an employee may engage in while traveling to and
from the job site in an employer-owned vehicle. For example,
under the plan at issue in Teddy W. Baker, et al., v. GTE North
Incorporated, company rules covering the use of vehicles for
commuting purposes explicitly stated:
Vehicles are to be used only for business purposes.
No personal use shall be authorized. No rider shall be
allowed in the vehicles while traveling. No authorized
stops will be allowed while the employees are traveling
except for fuel. The employee may stop in route home to
purchase milk, bread, cigarettes, etc. [Id. at page
17.] (emphasis added.)
Even though employees were on their own time and were not
being paid, GTE North required employees to adhere to all
company rules as if they were being paid and restricted where
the employees could go, where they could stop, and even
regulated what they could purchase. Unlike H.R. 1227, however,
in the GTE plan the employees freely and voluntarily chose to
use the employer's vehicle and could have used their own
vehicles to commute to and from work without being subject to
such restrictions. Employees do not have that option under H.R.
1227.
Adding salt to the wound, H.R. 1227 enables employers to
require employees to perform services for free that employers
are otherwise required to pay for under current law. The
employer can require the employee to load the vehicle, to fuel
the vehicle, to maintain the vehicle, to take job assignments,
or to perform any other duty ``incidental'' to the commute
without paying the employee for those services. In any other
circumstance, an employer is unquestionably required under the
FLSA to pay the employee for each and all of those services.
In conclusion, the Republican Majority contends in its
views that ``it is important for Congress to clarify the
intention of the Portal-to-Portal Act with regard to employee
use of employer-provided vehicles for commuting.'' In seeking
this purported clarity, however, the Majority attributes
limitations to the legislation that cannot be sustained by a
facial reading of the legislation. Further, it mischaracterizes
``incidental'' duties in a manner that bears no relationship to
the present state of the law. In fact, the Majority views more
accurately describe the Andrews' amendment, which it rejected,
than its own reported bill. The inevitable consequence of
distorting the description of the provisions of the legislation
is not the clarity that the Majority claims to desire, but
years of litigation caused by vagueness and ambiguity. The
plain language of H.R. 1227 and the Majority's views are
inherently inconsistent, inimical to current case law and
customary employer practices, and injurious to the ability of
workers to control their own time.
William L. Clay.
Dale E. Kildee.
Tom Sawyer.
Patsy T. Mink.
Xavier Becerra.
Gene Green.
George Miller.
Pat Williams.
Major R. Owens.
Donald M. Payne.
Chaka Fattah.