In workers' compensation, we sometimes find ourselves embroiled in the debate about whether someone was or was not "on-the-job" when some accident or event led to injury. As a general proposition, most states ascribe to something called the "going and coming rule," which generally excludes our commute from both being work time and injuries during the commute from being workers' compensation. There are a variety of exceptions to that general rule though.
Another issue in American employment is the perception that various regulations or laws might reach conflicting or at least inconsistent conclusions about a specific fact pattern. This has been discussed at length as regards defining employment, and whether someone is an employee or an independent contractor. Some states have multiple legal definitions of "independent contractor," which can result in a person being an "employee" for some purposes like workers' compensation, but not an "employee" for others, such as unemployment compensation. This can be confusing. Misclassification is one of the issues identified by national workers' compensation leaders (December 2017) as important in discussing workers' compensation. And, perhaps decreasing misclassification would be facilitated by simplifying the definitions, and increasing consistency?
Another issue in American employment is the perception that various regulations or laws might reach conflicting or at least inconsistent conclusions about a specific fact pattern. This has been discussed at length as regards defining employment, and whether someone is an employee or an independent contractor. Some states have multiple legal definitions of "independent contractor," which can result in a person being an "employee" for some purposes like workers' compensation, but not an "employee" for others, such as unemployment compensation. This can be confusing. Misclassification is one of the issues identified by national workers' compensation leaders (December 2017) as important in discussing workers' compensation. And, perhaps decreasing misclassification would be facilitated by simplifying the definitions, and increasing consistency?
Even when there is agreement on such a subject within a state, there is potential that workers in one state will find definitions and compensability different in one state from what might be seen in a different, even neighboring, state. The distinctions between states are of significant concern to workers' compensation community members, though perhaps of less concern to most specific individuals injured on the job. But, even a specific person with a specific injury may find their own state laws do not necessarily reach consistent results as some federal laws might.
Two recent news stories led me back to this discussion of consistency. One involves Taco Bell and the other Starbucks. In each instance, the facts include people who are employees and likely subject to the requirements of some state workers' compensation system. They are also subject to federal wage and hour laws.
The Street reported that the California Supreme Court concluded that Starbucks' payroll policy and practice violates federal wage and hour laws. Some lawyers see the decision as indicative of a major policy change, and predict "a slew of class action suits against employers." Essentially, Starbucks was accused of requiring employees to "clock out before completing tasks which were mandated by the company." So, at the end of a shift, the employees had to clock out and then complete a "store closure procedure" that involved transmission of various data "to Starbucks headquarters."
Starbucks argued that this task was covered by an exception to the federal Fair Labor Standard Act, called the "de minimis doctrine." Under that exception, if there is time that is "insignificant, infrequent, and difficult to record," then such work time may be appropriately not compensated. Disappointed with the California Court's conclusions, Starbucks is said to be appealing that decision to the federal Ninth Circuit Court.
Sources cited in that story predict that the decision might also implicate employers who "round" time for employees. The suggestion is that rounding worked hours up or down would potentially be problematic under the California court's ruling. It is difficult to see how an employee would be injured by their work hours being rounded upward (more hours = more pay, or am I missing something?). The seemingly more likely grounds for a lawsuit would appear to be the rounding down.
The Epoch Times recently reported on an employment dispute regarding Taco Bell. That company decided to put some restrictions on certain employees during their designated meal break. There was a perception that workers were using their "employee discount" to purchase food, but then leaving the premises with it to either share it, sell it, or give it to non-employees. So, the company rule made a distinction for breaks between those who used their meal discount and those who did not.
Employees who brought their own food, purchased food elsewhere, or did not eat, were allowed to do as they pleased, where they pleased, during their meal break. However, those who purchased Taco Bell food using their discount were precluded from leaving the premises with that food. It had to be consumed on-site. The employees balked and filed a lawsuit. Reuters reported that the employees alleged that this
"violated a state law requiring companies to provide uninterrupted, duty-free meal breaks or pay premium wages instead."
The oft-maligned Ninth Circuit Court of Appeal, which deservedly or not is seen by some as an outlier of legal analysis, concluded that Taco Bell was not thus exercising control over the employees. The Court reasoned that "employees were free to use the thirty minutes in any way they wished." If their wish was to use their employee food discount, that decision to accept a benefit came with a restriction, remaining in the restaurant. The court also rejected an ancillary claim that the "value of discounted meals" should be added to the employee's base pay rate, which is used to calculate the appropriate compensation for overtime. Similarly, that base pay rate might be used for determining workers' compensation benefits in various jurisdictions.
The issue regarding the meal break was thus dependent upon the determination of "control." Is the Starbucks decision less so? The conclusion of the California court is seemingly that requiring an employee to remain, to complete paperwork, is an exertion of control over that person. And, if remaining under the control of the employer, then appropriately remaining on the clock. The distinction suggested at Taco Bell is that the employee was left to make the critical decision of whether to choose unfettered use of the meal break or to give up some control (freedom) in exchange for some benefit (discounted food).
But, consider instead whether these admittedly non-workers' compensation conclusions would necessarily be consistent with questions of work injury compensability. Critical to that is remembering that such compensability conclusions would be a determination of each specific state's workers' compensation law and that the conclusion could be different depending upon what state some injury occurred within.
If the Starbucks employee is required to complete the paperwork, even though she/he has clocked out, and suffers an injury while completing it (or even walking from the time clock to a table to complete it), would the injury be compensable?
What if the Starbucks employee elects to complete this paperwork at home, after a long shift. Rather than remaining at the employer's premises, the employee gathers papers and commutes home. Then, after pouring some tea, she/he trips/falls while walking to the living room to sit and finish the required transmission of data (day-end paper or computer work). Is the accident at home therefore compensable under workers' compensation, because the employer should (or does) pay the employee for the time? If instead the employee (with the paperwork in hand for later use at home to transmit that data) has the trip/fall while traveling home, or even walking to the car, is that compensable under workers' compensation?
If instead of data transmission from home later, the paper in hand when the employee leaves the premises is instead taken for delivery to the company bookkeeper on the way home? Would a trip/fall on the way to the bookkeeper's office (or bank, or other errand) be compensable?
Similarly, if the employer uses "rounding" and will thus pay the employee up to 3:00 even though she/he clocked out at 2:50, and the employee departs for home and suffers a trip/fall at 2:58, off-premises, is it work-related because the employee remains on-the-clock?
If the employee on a meal break elects to purchase discounted food, and thus is made to stay on-premises, and suffers a trip/fall on the way to the table, is that a work injury because of the employer's "control?" If an identical employee suffers an identical trip/fall but is carrying their homemade PB&J, instead of a recently purchased discount Chalupa, is her/his accident not compensable due to the absence of employer control?
Is it practical to expect the outcomes of these various potentials to be consistent? Consistent that is in that the Chalupa and PB&J are treated the same; consistent in that control or lack of control is treated the same; consistent in that "at work" for wage and hour purposes is the same as "at work" for workers' compensation, unemployment, etc.; consistent in that what is compensable in Alabama would be compensable in Connecticut?
Will there be facts critical to wage and hour decisions that are less relevant in workers' compensation? Could someone be entitled to pay for some time, and yet not entitled to workers' compensation for an event or accident during that time? These potentials are a great challenge for workers' compensation. The distinctions befuddle lawyers, adjusters, judges, and more. If we are challenged, we need to remember how the injured workers and employers must feel.
Will there be facts critical to wage and hour decisions that are less relevant in workers' compensation? Could someone be entitled to pay for some time, and yet not entitled to workers' compensation for an event or accident during that time? These potentials are a great challenge for workers' compensation. The distinctions befuddle lawyers, adjusters, judges, and more. If we are challenged, we need to remember how the injured workers and employers must feel.