August 2015 Bar Bulletin
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August 2015 Bar Bulletin

Green Acres Is the Place To Be . . . But How To Get There?

By Aviva Kamm


Scenario 1: A ranch manager uses the company truck to commute from his home to the ranch and to drive between several smaller orchards during the workday.

Scenario 2: Employees hired to work at one orchard are told that for the next three days they are to report to work at a different orchard owned by the same company, but located 40 miles farther away.

Scenario 3: A company offers bus transportation from Yakima to Zillah each day at no charge. H-2A workers1 must ride the buses and non-H-2A employees are free to drive their own cars if they choose to do so.

Scenario 4: A company offers to pay workers for travel time to a remote orchard as an incentive to attract labor in a competitive market, but wants to stop the incentive when labor supply increases.

In which of these instances must the employer pay the employee for his or her time spent traveling? Nonproductive time, such as break time for piece-rate workers and travel time, is getting increased scrutiny from Washington employees, employers and courts. The overlay of federal and state wage-and-hour law gets even more complicated when considering laws particular to agriculture and foreign workers.

As a General Rule, Travel Time at the Start or End of the Day Is Unpaid

Under the Fair Labor Standards Act (FLSA) and Washington's Minimum Wage Act, employers must pay their employees the hourly minimum wage for all time spent working. But federal law is clear that employers are not required to pay employees for commuting time.

Travel to the worksite is not compensable under the amended FLSA unless the travel, or work performed immediately before it, constitutes the worker's "principal activity" or includes "activities which are preliminary or postliminary" to the principal activity. Washington law conducts a similar analysis, reviewing the specific circumstances to determine whether the employer exercises sufficient control over an employee during travel time that the employee is "on duty" and should therefore be paid.2

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