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2300 River Plaza Drive, Sacramento, California 95833-3239 •
(800) 753-9073
Quotation or reproduction in whole or part not permitted without express authorization.
In This Issue
NIOSH eNews Announced
UC Davis Revamps Farm Safety Web Site
ALRB Complaint Says Gallo of Sonoma
Committed ULPs
Employer-Friendly Ruling on CFRA Leave
Retirement and Bonus Plans Part One
Employment Arbitration Agreements in the
Courts Again
Supervisors Need FLC License to Transport
Employees
Schultz Named as Acting Secretary of Labor
and Workforce Development
FELS 2003 Wage and Benefit Survey
Travel-Time Compensation Opinion Letter
2003 Wage
and Benefits Tabulation
Safety Sheet: Poison
Safety
NIOSH eNews Announced
The National Institute for Occupational Safety and Health (NIOSH) announced a monthly newsletter sent by email.
NOISH's eNews includes articles on institute research, links to publications, information on current and upcoming projects, and notifications of upcoming events. eNews replaces NIOSH's listserv notification system.
The May inaugural issue of eNews was delivered to more than 12,000 stakeholders. It is available on the Internet at http://www.cdc.gov/niosh/enews.
UC Davis Revamps Farm Safety Web Site
The University of California Farm Safety Program on the Davis campus has revamped its Internet Web site.
The previous site at http://my.engr.uc davis.edu/~bae/FarmSafety/FARMSAF.HTML has been replaced with a simpler address. The new address is http://farmsafety.ucdavis.edu.
According to Dr. James Meyers, Agricultural & Environmental Health Specialist, the new site features practical agricultural safety materials to help employers make their operations safer.
Also, the site contains materials and links in Spanish.
"It is our hope that workers and employers alike will find resources at this site that will enhance their lives on and off the job," said Meyers.
ALRB Complaint Says Gallo of Sonoma Committed ULPs
On March 13, the Agricultural Labor Relations Board held an election among Gallo of Sonoma vineyard employees to determine whether they still want the United Farm Workers to be their collective bargaining representative.
The ALRB will not count the ballots until UFW charges of unlawful Gallo interference with the decertification effort are resolved, however. The ALRB's General Counsel in April issued a complaint agreeing with the UFW, saying that a Gallo foreman helped and encouraged his crew members to sign a document that would lead to a petition to decertify the union.
Gallo workers voted to join the UFW in 1994, and a first contract was signed in Sept. 2000. Gallo alleged that the UFW interfered with the March election and made "disparaging remarks" that the current contract prohibits.
E. & J. Gallo employs some 4,600 persons, about 80 percent of whom are represented by unions. However, only the 350 Gallo of Sonoma farm workers are represented by the UFW. Gallo of Sonoma has 3,000 acres of grapes in Napa and Sonoma counties.
(Source: Rural Migration News, April 2003)
Employer-Friendly Ruling on CFRA Leave
(Source: Barsamian, Saqui & Moody*)
The Ninth U.S. Circuit Court of Appeals, commonly considered the most liberal of all federal appellate courts, has issued a surprisingly employer-friendly decision limiting an employee's right to leave under the California Family Rights Act (CFRA). The decision in Gradilla v. Ruskin Manufacturing held that an employee may not use family leave to care for a family member with a serious health condition if accompanying that family member on travel for a personal reason.
In this case, the employee was in the employer's office filling out paperwork for a work-related injury when his wife called to say that her father had died and she needed him to take her to Mexico for the funeral. The wife had long-standing heart problems of which the employer was aware, and the employee had to take care of her, administering her medication and calming her down if her heart started racing.
The employee told his supervisor he had to take his wife to Mexico, but the supervisor said he was not entitled to bereavement leave under the collective-bargaining agreement because the deceased was not his direct family member. The employee said he did not want bereavement leave; rather, he needed to go to take care of his wife, due to her heart condition. The supervisor said he could go.
While he was gone, the employee missed three days of work. When he returned, he was discharged under the employer's attendance policy. The employee sued the employer, alleging in addition to other claims that his discharge violated the CFRA. The issue before the court ultimately came down to whether the employee needed leave "to care for" his wife.
In an earlier case, the Ninth Circuit held that a woman who had taken leave to help move her son to the Philippines was not entitled to CFRA leave because the son was not moving so that he could receive any health care, and in fact, he did not require any health care after he moved, creating an issue of whether the son even had a serious health condition. Here, there was no question that the employee's wife had a serious health condition, and that the employee had to provide her care as needed. Further, while in Mexico for the funeral, the employee in fact had to render care to the wife.
The court said that despite the fact that the wife needed medical care from the employee during the trip, the CFRA did not cover the leave because the purpose behind the trip was personal, not medical. While acknowledging this as a sympathetic situation, the court further said that if the CFRA were to cover a situation such as this, employers would be required to grant CFRA leave every time an employee requests time off to travel with a family member who has a serious health condition, no matter the reasons for the travel, whether for medical treatment or for strictly personal reasons, such as vacation. Therefore, unless the travel is for the purpose of obtaining health care, the majority of the court held that CFRA family leave does not apply.
Several of the judges on the panel disagreed with the decision, and in a blistering dissent wrote how this was an example of an uncaring employer taking advantage of a "poor, hardworking, Hispanic man, struggling to support his family by performing manual labor." The dissent also noted the employee had been repeatedly injured on the job and had returned to work as soon as possible, and that he had trouble communicating in English. Under the dissent's view, the court should have ruled that each case must stand on its own, with the court deciding if the reasons for the travel justified application of the CFRA leave rights.
What This Means for Employers While the employer ultimately prevailed in this case, one may reasonably question whether it was worth the time, trouble and expense to go through the administrative process at the Department of Fair Employment and Housing, a trial, and then an appeal. Rather, this case reinforces that many times an employer can help to avoid problems, and any consequent litigation, by making sure that supervisors are properly trained to ask the right questions, or at least know when they need to consult someone else about a particular situation. The issues surrounding family leave are particularly difficult, and employers should be extra diligent to make sure they are not making wrong decisions.
(The goal of this article is to provide employers with current labor- and employment-law information. The contents should neither be interpreted nor construed as legal advice or opinion. The reader should contact Patrick S. Moody of Barsamian, Saqui & Moody at (559) 248-2360, or his or her own attorney, for individual responses to questions or concerns about any given situation.)
Retirement and Bonus Plans Part One
(This article will be concluded in next month's issue.)
While not widely used in agriculture, retirement plans are one of several vehicles used to reward loyal employees. Some employers wish to avoid the "red-tape" involved in a formal retirement plan by rewarding employees with a bonus at the end of the year. The reason for the "red-tape" is because qualified retirement plans must meet strict rules under the federal Employee Retirement and Income Security Act (ERISA), thus creating a lot of work for an employer. This article will review the various types of retirement plans and issues concerning bonus plans.
Qualified Retirement Plans: A qualified plan is one that is described in Section 401(a) of the Internal Revenue Code. The most common types of qualified plans are profit sharing plans (including 401(k) plans), defined benefit plans and money purchase pension plans. Here is a discussion of the various types of retirement plans:
401(k) Plan: This is a retirement plan where an employee defers part of his or her current income into a tax shelter where it grows tax-free until the employee withdraws it. The employer has the discretion to match the employee's contributions. Annual contributions of employer and employee are limited to 25 percent of salary or $30,000. The plan allows an employee to save for retirement and simultaneously reduce his or her current income tax bill. Employees are often allowed to make decisions as to the investment of these funds.
Defined Benefit Pension Plan: This is a traditional pension plan that pays workers a specific monthly benefit at retirement. These plans either state the promised benefit as an exact dollar amount or specify a formula for calculating the benefit. Generally, a company funds the pension plan, and a professional money manager invests the assets of the fund.
Individual Retirement Account (Traditional): This is not a qualified retirement plan; it is described under a different section of the Tax Code. An IRA is established by an individual, not a company. Under this plan, an individual can deposit up to $2,000 of earned income a year into an IRA. If an individual is not eligible to participate in a pension, profit sharing, or 401(k) plan at work, the contributions to the IRA are deductible irrespective of the person's income. If the individual is covered by a company retirement plan, he or she loses his or her right to the IRA deduction as his or her adjusted gross income exceeds certain levels. Traditional IRA earnings are taxed when they are withdrawn.
Keogh Plan: This is a qualified retirement plan for self-employed individuals. Contributions to this plan are tax-deductible. The individual can direct the investment of the funds that are put into a Keogh, e.g., stocks, bonds, or mutual funds.
Roth Individual Retirement Account: This is similar to the traditional IRA except the contributions to a Roth IRA are nondeductible. When you withdraw money from a Roth IRA in retirement, it will be tax-free.
SEP IRA SEP IRA plans are a convenient way of offering retirement benefits to employees without costly administrative fees and tedious tax reporting. The plan allows employers to contribute on behalf of their employees and share in the benefit by deducting the contributions. (The 100-employee limit of a SIMPLE IRA does not apply to SEP IRAs. New SEP IRAs do not allow employees to defer dollars from their wages to the plan as a SIMPLE IRA does; however, the contribution limits to a SEP IRA are higher.) SEP IRA plans must be established by due date of the return, including extensions, in order to contribute for the preceding year. Employers and Employees are eligible to make IRA contributions into SEP IRA accounts. Contributions are limited to 25% of compensation or $40,000, whichever is less. The compensation cap is limited to $200,000. Contributions are flexible each year and are not mandatory. Contributions are 100% vested immediately.
SIMPLE IRA: SIMPLE IRAs were created for small business owners, with less than 100 employees, looking for a way to save for retirement without the administrative costs and complexities of qualified retirement plans. SIMPLE IRAs must be established by October 1 to make a contribution for that year. Employees can defer all or part of their salary. Employer contributions can be made in any of the following ways: match employee deferrals dollar for dollar up to 3% of employee compensation; 2% mandatory (non-elective) contribution to all eligible employees; match lower percentage of compensation without contributing less than 1%; employers can deduct SIMPLE IRA contributions made to employees' accounts.
Money Purchase Pension Plan: Money purchase pension plans must be established by December 31 or fiscal year end in order to contribute for the current tax year. Employer contributions must be made by the due date of the return, including extensions, for the preceding tax year. Contributions are limited to a deduction of 25% of the aggregate eligible participants' compensation. This amount would be reduced if the plan were paired with a profit sharing plan. Contributions are mandated annually per the elected percentage. A graded vesting schedule is permitted for plans choosing one year of service for eligibility. Participants in plans choosing more than one year of service are 100% vested upon eligibility. Loans may be taken if permitted within the Adoption Agreement.
Before establishing any retirement, consult an attorney or a competent financial advisor.
Bonuses: Bonuses are a simpler method to distribute a company's pre-tax dollars and receive positive employee relations from the expenditure.
Here are some of the pluses of awarding bonuses.
1. Bonuses are not controlled by ERISA and therefore are simple to administer.
2. Bonuses are a business expense and are tax deductible.
3. Bonuses are flexible. You can adjust the bonus for each employee based on any lawful criteria.
Here are some of the disadvantages of bonuses.
1. Bonuses are considered income to the employee, and employment taxes must be withheld when a bonus is awarded. The income cannot be deferred.
2. Employees often come to expect a bonus; they'll likely be demoralized if an expected bonus isn't given or is less than expected.
3. Bonuses, if intended to increase an employee's efforts, must be factored into calculations of an employee's regular rate of pay (RRP), thus increasing an employee's overtime compensation. For exempt employees, who aren't entitled to overtime premium pay, this isn't a concern. For non-exempt employees, the bonus may substantially increase the employee's regular rate of pay and therefore require the employer to make up the difference of overtime pay based on the original RRP and the new RRP. See discussion below.
4. Where a piece-rate or incentive plan is used, the Industrial Welfare Commission orders require employers to have a written explanation of the incentive-plan formula.
5. In the absence of a well-devised bonus plan, an employee upon separating from employment may be eligible for an anticipated bonus or at least a prorated portion of the bonus.
Generally, bonuses paid purely as gifts for past services and not measured by or dependent on an employee's hours worked, production, or efficiency are not considered wages and are thus disregarded when computing the employee's RRP. Christmas and special occasion bonuses fall under this category.
In contrast, bonuses intended to increase an employee's efforts are considered part of the employee's contractual pay rate and must be included in computing the employee's RRP.
To illustrate the issue of a bonus as compensation, take for example a person who is paid a bonus of $2,000 at the end of the calendar year. During the year, the employee earned $8 an hour and worked 2,000 hours plus 100 hours of overtime at the rate of $12 per hour. The $2,000 bonus divided by the 2,000 hours of work equals $1 per hour, which must be added to the employee's $8 hourly rate-a total of $9 per hour.
In this situation, the employer must recompute the employee's overtime using the $9 hourly rate. Accordingly, the employee's overtime pay rate in retrospect was $13.50 per hour (i.e., $9 per hour times 1½) rather than $12 per hour. This means the employee must receive the difference-$1.50 per hour-for each of the 100 hours of overtime work; in other words, another $150 on top of the $2,000 bonus that caused the overtime-pay adjustment.
Employment Arbitration Agreements in the Courts Again
(Source: Barsamian, Saqui & Moody*)
The saga over the enforceability of agreements to arbitrate employment disputes between employers and employees has continued in the courts recently, with both state and federal courts considering the issue. Unfortunately, this continues to be an area of the law in flux, with the federal courts, particularly the Ninth U.S. Circuit Court of Appeals, being somewhat hostile to arbitration agreements, while California state courts continue to be receptive to them.
We previously reported on the case of EEOC v. Luce, Forward, Hamilton and Scripps last fall, when a majority of a three-judge panel of the Ninth Circuit held that an employer was entitled to require new employees, as a condition of employment, to sign an agreement to arbitrate any employment-related disputes, rather than pursuing them in civil court.
That decision, a break from prior Ninth Circuit decisions, was thought at the time to potentially indicate that the Ninth Circuit might finally be leaning toward agreeing with California's state courts on arbitration agreements. Now, a majority of all of the judges on the Ninth Circuit have agreed that the full court should review the panel's decision. Accordingly, the court has suspended the prior ruling until the full court can review it and issue a new decision.
Meanwhile, the Ninth Circuit has issued a decision in another case involving an employer that tried to compel employees to sign arbitration agreements as a condition of employment.
In Ingle v. Circuit City Stores, the employer had an employee sign an arbitration agreement. When she later filed suit in federal court alleging sexual harassment and discrimination and disability discrimination, the employer filed a motion to enforce the arbitration agreement.
The District Court denied the employer's motion on the ground that an employer cannot require an employee to sign such an agreement as a condition of employment, citing the case law that had been the law in the Ninth Circuit before the panel's decision in Luce Forward (again, now under review).
The Ninth Circuit avoided this obvious Catch-22 by relying on California contractual law rather than the federal case law it is now reviewing. No matter how it got there, however, the Ninth Circuit affirmed the lower court's ultimate decision and held that the agreement was not enforceable.
Specifically, the court held the agreement was procedurally unconscionable because the employee had no opportunity to negotiate over its terms. Further, it was substantively unconscionable because, among other things: it gave the employer-but not the employee-the ability to modify its terms; it did not cover claims by the employer against the employee; it required the employee to pay a fee to file a claim and then one-half of the cost of the arbitration.
Although the court was correct in its ultimate decision-that is, its decision was in line with California law, which says a contract can be voided if it is both procedurally and substantively unconscionable-the tone of its rationale toward arbitration agreements is quite harsh in general.
Conversely, in McManus v. CIBC World Markets Corp., the California court of appeal issued on May 23 a decision addressing this same issue. In that case, an employee signed as a condition of his employment two different arbitration agreements.
When he filed a civil suit, the employer moved to compel arbitration. The employee argued the agreements were not enforceable because they were unconscionable, just like the employee had argued in the Ingle case above.
In particular, he argued that the agreements were presented to him on a take-it-or-leave-it basis with no opportunity to negotiate the terms, and they required him to share the costs of any arbitration. The court found that the agreements were a condition of employment; thus, they were technically procedurally unconscionable.
Here, however, the court found that any substantive unconscionability, such as the cost-splitting provision, could be severed from the agreements, while allowing the remainder of the agreements to be enforced. Thus, unlike the Ninth Circuit, which chose to invalidate the entire agreement, the California court found a way to enforce the agreement by modifying it to delete the unenforceable provisions.
What This Means For Employers: It is apparent the Ninth Circuit and California's state courts view arbitration agreements quite differently. If, as it seems likely, the Ninth Circuit will continue trying to find ways to invalidate such agreements, employees' attorneys will file claims in federal rather than in California courts to try to escape the agreements.
In the end, that is still to an employer's advantage because most California statutes relating to employment are more generous to employees than their federal counterparts. Therefore, employers may want to consider continuing to use arbitration agreements as a possible way to try to avoid harsher California laws.
*(The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360, or his or her own attorney, for individual responses to questions or concerns about any given situation.)
Supervisors Need FLC License to Transport Employees
California Labor Code section1682.3 provides that a farm labor contractor includes any "day hauler." "Day hauler" means any person who is employed by a farm labor contractor (FLC) to transport, or who for a fee transports, by motor vehicle, workers to render personal services in connection with the production of any farm products to, for, or under the direction of a third person.
Under California and federal FLC laws, an employee of an agricultural employer is excepted from having to register or be licensed as an FLC. However, the state exclusion doesn't apply to an employee who is an FLC by virtue of being a day hauler.
Labor Code section 1682.5,subdivision (b), states: "[T]his chapter does not apply to . . . [a]ny person who performs the services specified in subdivision (b) of Section 1682 only within the scope of his employment by the third person on whose behalf he is so acting and not as an independent contractor." As section 1682.5 does not mention Section 1682.3 or the day-hauler activities defined in section1682.3, the exception in section 1682.5, subdivision (b), does not extend to employees who are day haulers as defined under section 1682.3.
Accordingly, a company supervisor who provides rides to employees for a fee must be licensed as an FLC. An employer who uses such services must verify the person's license with the Division of Labor Standards Enforcement or risk fines and be liable for any violations of the day hauler/FLC.
Schultz Named as Acting Secretary of Labor and Workforce Development
Gov. Gray Davis named Herb K. Schultz of Los Angeles as the new acting Secretary of the Labor and Workforce Development Agency. The state Labor Agency coordinates labor policy issues and enforcement. Before his appointment and since March 2003, Schultz was the Agency's Undersecretary.
Schultz has public policy experience, especially in health-care and insurance policy at all governmental levels. In April 2002, the Governor appointed him Deputy Director for External Affairs for the Department of Managed Health Care. Before that, he served as Director of Government Affairs for AIDS Project Los Angeles.
From 1994 to 1998, Schultz directed the state government affairs program at the American Association of Health Plans in Washington, D.C., becoming Vice President, State Affairs. From 1993 to 1994, he served as Director of Federal and State Programs for Principal Health Care, Inc. From 1989 to 1993, he served as Manager, Federal Affairs, for FHP, Inc. (now PacifiCare) in Washington, D.C. Schultz earned a Bachelor of Arts degree in Political Science and International Relations from The American University and a Master of Public Policy degree from Georgetown University, both in Washington, D.C.
Established by a Governor's Reorganization Plan and SB 1236 (Alarcón), the Agency contains the Department of Industrial Relations, the Employment Development Department, along with their boards and commissions, the Workforce Investment Board and the Agricultural Labor Relations Board.
Schultz replaces Stephen J. Smith, the first acting Secretary of Labor, who took a leave of absence to lead the fight against the campaign to recall Gov. Davis.
FELS 2003 Wage and Benefit Survey
The results of the 2003 FELS Wage and Benefits Survey have been tabulated. The statewide results are on page 6 of this issue.
Copies of the full Wage and Benefit Survey tabulation may be purchased. A copy of the booklet costs $19 (FELS subscribers receive a 20% discount) plus a $2.50 handling fee and California sales tax (total cost: $23.17; $19.03 for FELS subscribers).
The 23-page tabulation contains a sample survey form, a comparison of averages from previous surveys, graphical presentation of the averages from previous surveys, and the results of the survey.
The survey results are presented by the following groupings: 1) statewide with all crops; 2) statewide by each of the eight crop catagorize; 3) all crops by five selected regions within the state; and 4) all surveys by size of year round employment.
Copies of the survey tabulations for 2000, 2001 and 2002 are also available at the same rates as the 2003 booklet. Send your requests and payments to: FELS, 2300 River Plaza Drive, Sacramento, CA 95833.
Travel-Time Compensation Opinion Letter
The State Labor Commissioner was asked if an employee must be paid for travel time when reporting to work at multiple workplaces. This situation occurs frequently in agriculture.
The following are excerpts from a letter from H. Thomas Cadell, Jr., retired Chief Counsel of the Division of Labor Standards Enforcement, to an attorney who represents an employer in Kern County:
You set out the following facts:
We represent a client with an employee who alternates work sites by spending five days in Bakersfield, where he resides, and then five days at the Palmdale work site. It is an approximate hour and a half drive each way from Bakersfield to Palmdale. therefore, each day the employee works in Palmdale, he drives to and from the Palmdale site and incurs three hours of travel time. The employee does not drive from the Bakersfield work site directly to the Palmdale work site, but rather leaves directly from his home. the employee is nonexempt and is entitled to overtime pay for overtime worked. The employee drives a vehicle furnished by the company but the employee does not transport any significant materials from one work site to the other.
You ask the DLSE to address the issue of whether the employee is entitled to compensation for time spent traveling from Bakersfield to Palmdale and back.
We note that the nature of the employment is not discussed in the fact scenario you have submitted. We will, therefore, discuss the issue in broad terms and allow you to apply the DLSE enforcement posture to your client's situation.
THE NATURE OF THE OCCUPATION, REASONABLE EXPECTATIONS: The California Supreme Court addressed the issue of travel time in the case of Morillion v. Royal Packing. The Court held that it was necessary to "distinguish between travel that the employer specifically compels and controls…and an ordinary commute that employees take on their own." (Emphasis added) The Court in Morillion concluded that farm workers who were required to meet at designated departure points at a certain time to ride the employer's buses to work were under the control of the employer and entitled to be compensated for that time. The Court also noted, of course, that "[T]his conclusion should not be considered as holding that all travel time to and from work, rather than compulsory travel time as defined above is compensable." The question then becomes: What is "compulsory" travel time and what is "an ordinary commute?" DLSE has taken the position that travel involving a substantial distance from the assigned work place to a distant work site to report to work on a short-term basis is compensable travel time.
The travel time is measured by the difference between the time it normally takes the employee to travel from his or her home to the assigned work place and the time it takes the employee to travel from home to the distant work site. This could calculate to no commute time if, for instance, the travel time is less from the employee's home to the distant work site than the normal commute travel time by the employee.
A long-term transfer to a different work site (no matter how distant) would raise different issues involving expenses and travel time which are not addressed in this letter.
The DLSE has recognized, also, that some employees in certain occupations, by the nature of the industry and the occupation, are not assigned to a specific workplace and have a reasonable expectation that they will be routinely required to travel reasonable distances to job sites on a daily basis. Primary examples would be found in the construction industry where the employer only offers employment to some employees in certain occupations at the current building site, not the employer's offices, shop or other fixed place of business. Certain other workers, for instance, those in the entertainment and movie industries working in short-term employment situations where the site of the work changes, could also be included. This list is not inclusive and there may be other occupations which would be subject to these exceptions.
Note, too, that not all employees in any given occupation in a particular industry would necessarily be included among those "not assigned to a specific workplace and routinely required to travel reasonable distances to job sites on a daily basis."
For instance, a carpenter employed by a contractor to perform framing work would, under normal circumstances, have an expectation that he or she was to report for work at the job site the contractor is currently working. If this is the routine, the framing carpenter could not expect to be paid for the time commuting from his home to the job site if that job site was within a reasonable distance. This would be so as a result of the fact that framing carpenters typically report in this fashion and do not have a specifically assigned workplace. Any travel by the framing carpenter required by the employer during the workday would, of course, be compensated travel time.
If the same contractor employed a finish carpenter who built cabinets in the contractor's shop, the finish carpenter has a specific assigned workplace: the contractor's shop. In the event the finish carpenter was assigned to install the cabinetry at a worksite, that employee would be entitled to travel time. Again, as explained above, the travel time would be measured by the difference between the normal time it took to reach the shop from home and the same time from the worksite to home.
It is also recognized that a construction employer may be forced, by normal business circumstances, to accept construction contracts in distant areas. If the employer requires the employee to travel to that distant work site, the time is compensable. The amount of time compensable is measured as described above by the difference between the normal commute and the time to the new location.
Thus, even in those instances where there is a reasonable expectation that the occupation would require some travel, unreasonably extended travel could be compensable depending on the surrounding circumstances. Also, if the travel involved the employee being required to deliver any equipment, goods or materials for the employer, the travel, no matter how extended, would be compensable.
Employees such as those described above are in unique situations. Normally, the DLSE does not consider these employees to be in the same category as workers who are, by the nature of their occupation, normally assigned to a specific work location or who report to, or headquarter in, a specific work location.
For this reason, DLSE has taken the position that an office worker assigned to a given location may not be required to report to a distant location on a day-to-day basis.
Indeed, DLSE has concluded that in the event an employee with a fixed and assigned workplace is required, on a short-term basis, to travel anything more than a de minimis distance to report to work at a place other than an employee's usual work place, the employee is entitled to be compensated for the additional time measured by the difference in the time normally required to travel between the employee's home and the regularly assigned workplace and the time between home and the temporary worksite.
It should be noted that this calculation is expressed in "time" and not distance. This is because traffic patterns, of course, vary from location to location and travel times for the same distance would likewise vary.
The question has also been asked concerning the right to travel time for a clerical employee who is "transferred" to a job site for the duration of a project and, after completion of that project, the clerical employee may be "transferred" to another job site.
The DLSE concluded that as long as each of the transfers was for more than one month, each of these job sites, in turn, would be assigned workplaces for that employee. Travel to the employee's new location would, therefore, be "an ordinary commute."
This conclusion was based on the fact that every employer has the right to "transfer" a position of an at-will employee. Barring any contractual obligation, the employer is not required to compensate the employee further.
2003 Wage and Benefits Tabulation
