Labor and Employment - W. Christopher Arbery and Valerie N. Njiri

• Publication year: 2007

Labor and Employmentby W. Christopher Arbery^* and Valerie N. Njiiri^**

The Eleventh Circuit's trial and appellate courts handed down several significant opinions affecting labor and employment law during this survey period (January 1, 2006 to December 31, 2006). For example, the Eleventh Circuit rendered notable decisions involving the Fair Labor Standards Act ("FLSA"),¹ the Family and Medical Leave Act ("FMLA"),² the Employee Retirement Income Security Act ("ERISA"),³ and federal and state Racketeer Influenced and Corrupt Organization ("RICO") statutes,⁴ and a district court decided a noteworthy decision under the Uniformed Services Employment and Reemployment Rights Act ("USERRA").⁵

I. The Fair Labor Standards Act—Compensable Time

In a series of related cases, the Eleventh Circuit and the United States District Court for the Middle District of Florida ruled that employees who begin their workday by picking up an employer vehicle and driving it to their first job assignment must be compensated for the time driving between their employer's parking site and their first assignment under the Fair Labor Standards Act ("FLSA").⁶

In Burton v. Hillsborough County⁷ and Silas v. Hillsborough County,⁸ the plaintiffs, who worked for Hillsborough County's Public Works Department, filed complaints against Hillsborough County (the "County") for allegedly failing to compensate them for the time they spent driving county vehicles from a county parking site to their first assignment for the day or from their last work-site back to the county parking site at the end of the day. The County required the plaintiffs to drive their personal cars to a county parking site where they picked up county vehicles, which the plaintiffs then drove to a work-site. The plaintiffs used the county vehicles to travel between work-sites during the day, and at the end of each day, the plaintiffs returned the vehicles to the county parking site and retrieved their personal vehicles. The county vehicles contained tools and equipment that the plaintiffs used for their jobs and also served as satellite offices from which the plaintiffs could perform their duties while at a work-site. The County required the plaintiffs to leave their tools in the county vehicles at the parking sites at the end of each day. In addition, the County assumed all costs for vehicle maintenance and fuel.⁹

The parties filed cross-motions for summary judgment. The district court granted the plaintiffs' motion for summary judgment after concluding that the plaintiffs should be compensated for the travel time.¹⁰ In support of its decision, the district court reasoned that retrieving and returning the county's vehicles, which contained tools and equipment necessary for them to perform their jobs, was a principal activity under the Portal-to-Portal Act.¹¹ The district court further reasoned that the travel time was compensable because it played an integral part in the plaintiffs' ability to perform their jobs and because the storage of the vehicles at a county facility primarily benefited the County. The County appealed this decision.¹²

Under the Portal-to-Portal Act, an employer is not liable under the FLSA for failing to pay overtime compensation for: (1) traveling to and from the employee's work site where the employee performs his "principal activity or activities" or (2) activities that are "preliminary to or postliminary to [the employees'] principal activity or activities," which occur before the employee begins his workday or after the employee finishes his workday.¹³ Moreover, the Portal-to-Portal Act provides that incidental use of an employer's vehicle for commuting is not considered part of the employee's principal activities if the employee uses the vehicle within the "normal commuting area for the employer's business or establishment" and if there is an agreement between the employer and the employee regarding the usage of the employer's vehicle.¹⁴ However, under the Portal-to-Portal Act, preliminary and postliminary activities are compensable if they are "'an integral and indispensable part of the [employee's] principal activities.'"¹⁵

On appeal, the County argued that under the Portal-to-Portal Act, it was not required to compensate the plaintiffs for their travel time because the county vehicles were used within the plaintiffs' normal commute area, and there was an understanding between the County and the plaintiffs regarding the use of the county vehicles.¹⁶ The Eleventh Circuit determined that resolution of whether the plaintiffs were entitled to overtime compensation for time spent traveling between the county parking site and their work-site in a county vehicle rested on the definition of "travel" in the Portal-to-Portal Act.¹⁷ After reviewing the statute and its regulations, the court determined that under the FLSA regulations, traveling was defined to include incidental travel, such as commuting from home-to-work or work-to-home, which is generally not compensable.¹⁸ However, the court concluded that "travel from an employer-designated location to the workplace is compensable under the FLSA as that travel constitutes a part of the employee's principal activity."¹⁹ Consequently, the court determined that employer-required travel that occurs when an "employer's mandate or job requirement interrupts an employee's home-to-work and work-to-home path"²⁰ fell outside the Portal-to-Portal Act exemption and, therefore, was compensa-ble under the FLSA.²¹ The court explained that the focus should not rest on whether the employee used an employer-owned vehicle for the travel, but instead on whether the employee was "required to return to the employer's premises after a day's work prior to returning home."²² Because the plaintiffs in this case were required to travel between the county parking site and their work-site, the court determined that this travel time was compensable.²³

Another key issue that the court focused on in its determination of whether the plaintiffs' travel time was compensable was the FLSA's definition of "principal activity or activities."²⁴ Based on the Eleventh Circuit's precedent in Dunlop v. City Electric, Inc.,²⁵ the court determined that activities that are "'an integral and indispensable part of the principal activities for which [the employees] are employed'" do not fall under the Portal-to-Portal Act exemption and, thus, are compensable under the FLSA.²⁶ In this case, the County required the plaintiffs to drive their personal vehicles to the county work-site closest to their assigned work location and pick up a county vehicle to drive to the worksite. At the end of each workday, the plaintiffs were required to drive the county vehicle to the county parking site because the County wanted its vehicles stored in a secure location, and the County wanted to prevent unauthorized or personal use of the vehicles.²⁷ In addition, the plaintiffs needed the county vehicles because that was where they stored their equipment and the tools necessary to perform their duties.²⁸

Based on these facts, the court determined that the plaintiffs had to begin and end their workday at the County's parking site to use the county vehicles, and therefore, use of the county vehicles was "integral and indispensable to the plaintiffs' principal activities."²⁹ Furthermore, the court concluded that, although the employees may have gained a small benefit from not using their personal cars for part of their commute, the County significantly benefited because the county vehicles were stored in a secure facility, and the vehicles were not used for personal or unauthorized purposes by the employees.³⁰ For these reasons and others, the court affirmed the district court's decision and held that the plaintiffs should have been compensated for the travel time.³¹ Later in 2006, the Middle District of Florida followed Burton in Silas, finding that because the defendant and the allegations were identical to those in Burton, the employees in Silas were also entitled to overtime compensation.³²

The decisions in Burton and Silas provide that an employer must compensate an employee for employer-required travel time between two employer locations when the employer derives a significant benefit from that travel. Moreover, the United States Supreme Court has already denied the County's petition for certiorari,³³ leaving the Eleventh Circuit's decision intact. Accordingly, employers should review their payroll policies to ensure that their employees are being compensated for employer mandated travel time. Failing to do so could subject employers to serious liability.

II. The Family and Medical Leave Act

In Hurlbert v. St. Mary's Health Care System, Inc.,³⁴ the Eleventh Circuit held that an individual can be incapacitated from one job and continue to work at another position with a different employer and still be entitled to FMLA leave.³⁵ Thomas Hurlbert was a long-time employee of St. Mary's Health Care System, Inc., ("St. Mary's") working as a paramedic in 1989. Hurlbert also worked full-time with the Rockdale County Fire Department ("Rockdale") as a firefighter and dealt with hazardous materials and occasional paramedic duties. Hurlbert was promoted to a supervisory position at St. Mary's shortly after his employment began, which involved maintaining St. Mary's emergency medical services ("EMS") vehicles. Five years later, Hurlbert's duties changed when he became responsible for supervising three Emergency Medical Technician shifts. Hurlbert's duties included ensuring that EMS units were properly staffed, visiting and checking the various duty stations, and transporting linens.³⁶

In October 1999 Hurlbert had a heart attack but returned to work after surgery on November 9, 1999 at St. Mary's and November 16, 1999 at Rockdale. Hurlbert, however, was diagnosed with depression, anxiety, and sinusitis and was on medication for these conditions.³⁷

In February 2002 St. Mary's went...