Federal Preemption Yields a Victory For Employers, Connecticut Supreme Court Holds Commuting Time Not Compensable
In Sarrazin v. Coastal, Inc., 311 Conn. 581 (2014), the Connecticut Supreme Court ruled that the Fair Labor Standards Act (“FLSA”) preempts Connecticut law with respect to a claim seeking overtime wages for certain travel time and concluded that under the FLSA a plumber’s commuting time is not compensable even though he commutes in a company vehicle with his tools at the ready.
The plaintiff in this case was employed by Coastal, Inc. (“Coastal”), a plumbing subcontractor engaged in the installation and repair of plumbing systems on large construction projects throughout Connecticut. His state law claim for overtime wages was directed at the two hours a day he spent driving a company truck from his home to varying job sites. He also claimed as compensable time the half an hour each day he allegedly spent cleaning the truck once he arrived home as well as the time occasionally spent picking up tools from defendant’s warehouse after working hours.
The threshold issue in the case was whether the FLSA, and more specifically the Portal-to-Portal Act, preempted state law as it related to the travel time in question. Because the FLSA does not include an express preemption clause, and Congress clearly did not intend that the FLSA occupy the field, state wage and hour laws are only preempted to the extent there is an “irreconcilable conflict” with the FLSA. Starting from the premise that the FLSA is “a national floor with which state law must comply,” the Court determined that “state laws that provide less protection than guaranteed under the FLSA are in irreconcilable conflict with it and preempted; state laws that provide the same or greater protection than that provided by the FLSA are consistent with the federal statutory scheme and are thus not preempted.” In this context, the “national floor” is defined by the rule that activities preliminary and postliminary to an employee’s primary work activities, such as the employee’s commute, generally are not compensable. This is true even if the employee is commuting in a company vehicle, as long as the travel is within the employee’s normal commuting area and the use of the employer’s vehicle is pursuant to an agreement between the employee and his employer. Federal courts have carved out an exception to this rule, holding that the time is compensable if the requirements and restrictions the employer places on an employee’s commute impose more than a minimal burden on the employee, such that his commuting time becomes an integral and indispensable part of his primary work activity.
Having established the federal “floor,” the Court focused attention on the applicable state regulation in order to assess whether state law provided less protection than the FLSA and thereby created an “irreconcilable conflict.” The Connecticut regulation, codified at Regs. Conn. State Agencies § 31-60-10, defines “travel time” as “that time during which a worker is required or permitted to travel for purposes incidental to the performance of his employment but does not include time spent in traveling from home to his usual place of employment or return to home, except as hereinafter provided in this regulation.” The operative regulation goes on to provide in Subsections (c) and (d) that only “additional travel time”—defined as the difference between an employee’s regular commute and the time it takes to travel from an employee’s home and a location other than his regular place of employment—is compensable. Added to this mix is subsection (b), which provides that “travel time” is compensable when an employee is required to travel for purposes that “inure to the benefit of the employer.” Taking these subsections as a whole, the Court concluded that unlike the FLSA, there are no circumstances under which Connecticut regulations require an employee to be compensated for his regular commute. In other words, there is no “more than a minimal burden” test.
In so concluding, the Court rejected the plaintiff’s reliance on the Connecticut Department of Labor’s interpretation of its own regulations. Although such interpretations are ordinarily entitled to deference, that is not the case where, as here, the department’s construction of a provision “has not previously been subject to judicial scrutiny [or to] . . . a governable agency’s time-tested interpretation.” In this instance, the regulation had not only gone unscrutinized but was based on what the Court obviously considered to be outdated information. Specifically, the CT DOL read § 31-60-10 as incorporating the standards set forth in a 1995 U.S. Department of Labor opinion letter interpreting the Portal-to-Portal Act to mean that time spent commuting in a company vehicle is not compensable if the company vehicle is the type that would normally be used for commuting, the employee incurs no cost for using the vehicle, the work location is within normal commuting distance, and the employee takes the company vehicle home at the end of the day voluntarily. However, this test represented a complete reversal from an opinion letter issued in 1994. Unsatisfied with this discrepancy, Congress amended 29 U.S.C. § 254(a) to provide that when an employee uses an employer’s vehicle to commute, that travel time, which includes activities incidental to the use of the vehicle, is not compensable if the travel is in the normal commuting area and the employee is using the vehicle subject to an agreement with his employer. The Court was clearly perplexed by the CT DOL’s continued reliance on a position that “was emphatically and expressly rejected by Congress in 1996” and its failure “to acknowledge the questionable history of the 1995 opinion letter or offer any explanation as to why the department nonetheless relies on an interpretation superseded by congressional action to interpret § 31–60–10 of the regulations.”
Summarizing on the preemption point, the Court explained that “pursuant to the plain language of § 31–60–10 of the regulations, we conclude that the regulation provides for no compensation for an employee’s regular commute. Because the FLSA does allow for compensation for an employee’s regular commute under certain circumstances, preemption applies and the Portal-to-Portal Act governs the plaintiff’s claim.” Having concluded that state law is preempted, and the provisions of the FLSA are therefore controlling, the Court quickly disposed of the matter, agreeing with the trial court’s conclusion that the plaintiff’s commuting time was not compensable under the FLSA in that carrying tools during a commute imposed a minimal, if any, burden on the plaintiff, the commute to various job sites was within the normal commuting area, and the plaintiff used the defendant’s truck subject to an agreement between the two parties.
This is a victory for Connecticut employers in that the Court rejected a CT DOL interpretation of the agency’s regulations that would have conferred greater benefits on employees in terms of compensation for travel time than is afforded by federal law. That being said, employers and attorneys alike should be on the lookout for possible changes to the Connecticut laws at play in this case in the next legislative session and for updated interpretations by the CT DOL of its own regulations in light of the Court’s not-so-subtle criticism.