Question: Do I need to include an amount for mileage on an employee’s W-2 if the employee is allowed to take the company vehicle home? What about if the employee is a service tech that is required to have the truck for on-call purposes?
Answer: The primary source of authority on what is and what is not compensable working time is the federal Fair Labor Standards Act (“FLSA”). The relevant FLSA regulation, 29 CFR Sec. 785.17, provides:
“An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on call' [and therefore must receive compensation for this time]. An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.”
In the situation presented here, I am assuming the service techs are at home when they are on-call, which would suggest the time spent waiting to be dispatched need not be compensated. On the other hand, the fact the tech must respond within one hour of being dispatched raises the question of whether the employee can “use the [on-call] time effectively for his own purposes.” Indeed, according to a fact sheet on the DOL website concerning this issue, “Additional constraints on the employee's freedom could require this time to be compensated.” DOL has not provided any guidance, however, on what “additional constraints” would need to be present in order to require the on-call time to be treated as working time.
Another factor that has been used by the courts to decide this issue is how often, in practice, the on-call employee is contacted by the employer and required to work. Courts also look to the typical practice in an industry to determine whether the on-call time should be compensable.
This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with ACCA’s LegalTools Counsel, Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at firstname.lastname@example.org.
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