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Last year, a Wisconsin court of appeals held that it was unsettled under Wisconsin law whether employers may be required to pay employees for time spent driving between home and work in company vans if the vans are also transporting work tools and equipment. The plaintiffs maintained that their workdays commenced the moment they left home at the beginning of each workday because they were transporting tools necessary and indispensable to the principal activity of their jobs. The plaintiffs argued that the company’s duty to pay employees for this time arose from the statutory mandate that “[e]very employer shall . . . pay to every employee engaged in the employer’s business . . . all wages earned by the employee.” (Wis. Stat. Sec. 109.03(1).)

The analysis is clear under federal law, regardless of whether tools are transported, of course. The U.S. Congress passed the Employee Commuting Flexibility Act (ECFA) in 1996, which clarified the federal standard: under federal law, an employee’s use of an employer-owned vehicle to travel to and from home does not entitle the employee to compensation for commute time when the driving is limited to the normal commuting area of the employer’s business and subject to an agreement between the employer and the employee. But Wisconsin had yet to consider this question.

The Wisconsin Supreme Court granted review, and on March 20, 2019, reversed the court of appeals’ decision, finding for the employer. “Whether the employee is in a personal or a company vehicle, he [all 86 of the plaintiffs in the case were men] is doing the exact same thing, and no one disputes that the time at issue would not be compensable if [the employee] had driven his own automobile.”

Wisconsin’s high court does not routinely decide wage and hour cases, let alone decide them unanimously, but in this case, all seven justices found that the appeals court decision was wildly out of step with what it means to be “working” under Wisconsin law.

A paralegal who goes home in the evening with the company-provided computer and then travels the next day to a witness’s location to conduct an interview is transporting the resources necessary to do his job. So is every office-worker who brings a file home after work, and then returns at the next morning. And, because there is no logical limit to [the plaintiffs’] argument, so too is anyone who merely drives to his regular place of employment each morning. An employee creates value for his employer, of course, by bringing his physical and mental resources to bear on the company’s business.

The court found that to hold otherwise would render every commute a compensable event.

According to Chapter DWD 272.12(2)(g) of Wisconsin’s Administrative Code, there are many circumstances in which time spent in travel may constitute compensable work, including travel from “[h]ome to work in emergency situations,” travel from “[h]ome to work on special one-day assignment in another city,” “[t]ravel that is all in the day’s work,” and “travel time away from the home community for business purposes that occurs for the benefit of the employer.” However, in the state of Wisconsin and under federal law, the law is now clear: ordinary commuting time remains noncompensable, even if the commuting takes place in a company van containing work-related tools and equipment.

This opinion provides welcome clarity for Wisconsin employers that allow employees to commute to work in company vehicles.

The employer in this case was represented by the authors, David J. B. Froiland and Christine Bestor Townsend.


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