Do you have to pay for employee commutes?

Do you have to pay for employee commutes?

Do you have to pay for employee commutes? For mobile employees without a set workplace, the commute to work may vary greatly from day to day – but does that mean employers have an obligation to pay their staff for the travelling time?

That’s the question the Ontario Labour Relations Board was asked to deliberate in a recent case and here, top employment lawyer Brian Silva explains the outcome.
 
In a recent decision argued by one of the lawyers at CCPartners, the Ontario Labour Relations Board (the “Labour Board”) ruled that time spent by an employee traveling from home to the first job site of the day and back home from the last job site of the day in a company vehicle was commuting time and not time spent working for which the employer was required to pay.

In this case, the employer is an HVAC and Refrigeration company with technicians providing maintenance and service to a variety of commercial customers.  It is not unusual for a technician to perform work at multiple customer locations during a workday. The employer has a shop where some work may be done but the majority of its work is performed at customer locations. Technicians are provided the option of driving a company vehicle home with them at the end of the day.

A former technician who opted to drive a company vehicle home in the evenings filed a complaint against the employer with the Ministry of Labour (the “Ministry”). He alleged that the time he spent driving the company vehicle from his home to the first job site of the day and back home from the last job site of the day (“commute time”) was time spent working, for which he should have been compensated. The Employment Standards Officer (the “Officer”) who investigated the complaint agreed with the employee that the commute time was time worked and ordered the employer to back-pay the employee for all commute time throughout his employment. The Officer based her decision entirely on the Ministry’s Travel Time Policy, set out below:

With the exception of commuting time, any time a person spends travelling (irrespective of the mode of transportation) for the purpose of getting to or from somewhere where work will be performed, must be counted as hours of work;

Commuting time means the time required for an employee to travel to work from home and vice versa. However, there are a number of exceptions to the rule.

If the employee takes a work vehicle home in the evening for the convenience of the employer, the hours of work begin when the employee leaves home in the morning and end when he or she arrives home in the evening.

If the employee is required to transport other staff or supplies to or from the workplace or worksite, time spent must be counted as hours of work. [Emphasis added].

Since the Ministry’s Officer found that there was at least some convenience to the employer in having the employee drive a company vehicle home in the evening, the Officer ruled against the employer.  
The employer appealed the Officer’s decision to the Labour Board, taking the position that the Ministry’s Travel Time Policy was not binding or enforceable law, and, in any event, that the Officer’s interpretation of the Ministry’s Policy was unreasonable. The employer argued further that the Labour Board ought to instead apply the Employment Standards Act, 2000 and its regulations in determining whether the commute time was compensable work or not. The Labour Board agreed with the company, stating:

15.  If the Board were to adopt the [Officer’s] reasoning set out above, it would mean that any employee using a company vehicle with the ability to take it home would have to be paid for all time commuting to and from work while driving the vehicle. Not only is that not a reasonable interpretation of the Manual, it has no basis in law.

16.  In the first place, the [Ministry’s Policy] does not have the force of law. Publications of this sort, including the Ministry of Labour’s Employment Standards Workbook have been recognized as non-binding… When work is deemed to be performed is defined in Section 6 of O. Reg. 285/01 of the Employment Standards Act, 2000…

17.   The fundamental obligation of any employee, and this would include the responding party, is to get from home to his place of work however the employee chooses to do so.  This can be done in a number of ways, including using public transportation, a personal vehicle or a company-owned vehicle and that travel time is “commuting” to work, not deemed work.  The workplace can be the first job site of the day, a supplier, a shop or any other type of place that the employee is required to go by the employer.  Similarly, any travelling done after the recognized work time to any location not required by the employer is also “commuting” from work and not deemed work.  The fact that the employee is using a company vehicle and who is or is not convenienced by that is immaterial.  The rather indefinite concept of “convenience” (what it means, how much, to whose benefit, to what degree, etc.) is not part of the applicable legislation and has not been used in arriving at the Board’s decision in this case.

Employers should take note of two things. First, the employee in this case was provided the option to take the company vehicle home. It is not entirely clear whether the Labour Board would have reached the same conclusion had the employee been obligated to take the company vehicle home instead.

Second, despite the Labour Board’s ruling overturning the Officer’s decision, the Ministry’s Travel Time Policy remains unchanged. This means employees could very well continue to successfully file similar complaints with the Ministry. In those instances, an appeal to the Labour Board may be necessary to enforce the employer’s rights.

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