Third Circuit on compensation for commuting requirements

Black letter law dictates that time spent commuting is generally not compensable. But are there exceptions? The Third Circuit issued an interesting (albeit, not precedential) opinion on a quirky commuting scenario in Smith v. Allegheny Technologies, Inc.

Not official use.

The employer began a lockout of its union employees, who responded by creating a picket line. The employer hired a temporary workforce, and allegedly required them to take company vans from their hotel to cross the picket line - roughly a 45-minute commute each way. Some of the employees filed a lawsuit claiming they were entitled to compensation for the commuting time under the Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage Act (PMWA) (also, some Oregon law, which for purposes of this case was identical to the FLSA).

The Court actually reached a split decision - the employees could proceed under the PMWA, but not the FLSA. The Portal-to-Portal Act specifically excludes mandatory compensation under the FLSA for time spent "traveling to and from the actual place of performance of the principal activity," unless the travel was "integral and indispensable" to their principal activity of making steel. The Court held that taking the van to work was "at least two steps removed from making steel." Thus, no FLSA claim.

The PMWA has no express portal-to-portal provision though. Instead, Pennsylvania regulation requires compensation for "time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work.” 34 Pa. Code § 231.1. The plaintiffs alleged that they were required to cross the picket lines in company vans, and that they were to follow specific instructions as a "term and condition of their employment." That was good enough for the Third Circuit to allow them to proceed with their PMWA claims.