You and the Law
Notable Workplace Judgments and Verdicts
Brink’s Home Dispatch Program Triggers Compensable “Drive Time” for Service Technicians
A class action for compensable drive time by service techs is upheld against Brink’s Home Security Inc. in the Washington State Supreme Court on October 18, 2007, for time the technicians spent driving company trucks from their homes to the first jobsite and back from the last jobsite. These 69 technicians installed and serviced home-security systems. Brink’s supplied technicians with pickup trucks bearing the Brink’s logo and configured to carry the necessary tools and equipment.
Brink’s compensated all technicians for the time spent driving the Brink’s trucks between jobsites. For the time spent driving to the first and from the last jobsite, Brink’s offered these technicians a choice between two programs. Under the first option, the technicians could drive their personal vehicles to the Brink’s office in Kent, WA, and pick up the Brink’s trucks from the office to the first jobsite and from the last jobsite to the office. Brink’s did not pay them for time spent commuting between their homes and the Kent office.
The second option—the subject of this litigation—allowed the technicians to keep the Brink’s trucks at their homes and drive them directly to and from the first and last jobsites without stopping at the Kent office. Brink’s named this option the home dispatch program (HDP). Technicians participating in the HDP received their daily job assignments through voicemail or handheld computers. Brink’s generally compensated the technicians in the HDP for any drive time in excess of 45 min. from technicians’ homes. Between September 2002 and January 2005, Brink’s implemented an interim HDP policy, where Brink’s paid technicians for drive time to the first jobsite and from the last jobsite only if the site was located more than 45 min. from technicians’ homes and the Brink’s office in Kent. If the particular drive qualified for compensation under this policy, Brink’s paid the technicians only for drive time in excess of 45 min.
In November 2002, these technicians filed a class action in King County Superior Court. Technicians alleged in part that Brink’s violated the State Minimum Wage Act by failing to compensate them for all drive time under the HDP.
The State Supreme Court evaluated the extent to which Brink’s restricts technicians’ personal activities and controls technicians’ time to determine whether technicians are “on duty” for purposes of the minimum-wage and overtime-law regulation. Brink’s company policy was viewed as strictly controlling technicians’ use of the Brink’s trucks, specifically mandating that they use the trucks “for company business only.” Technicians could not carry non-Brink’s employees as passengers in the trucks. Company policy also required technicians to wear seat belts, obey traffic laws, not park haphazardly, lock the vehicle at all times and never carry alcohol. Unlike ordinary commuters who regularly run errands during their commutes and carry additional passengers, Brink’s policy prohibited technicians from engaging in personal activities while driving the Brink’s trucks. The technicians could not use a Brink’s truck for shopping.
In contrast to ordinary commuters, the Brink’s technicians received their jobsite assignments at home via voicemail or handheld computer. They actually spent time writing down assignments and mapping the best routes to reach their installation and service locations before beginning their drive. In addition to the restrictions on technicians’ drive time, technicians remained “on duty” during the drive. Supervisors could redirect technicians under the HDP while en route to and from their homes to assist with other jobs or answer service calls.
The undisputed facts from the summary judgment proceedings established that technicians were “on duty” during the drive time, and performing company business during the drive time, because Brink’s strictly controlled the drive time, prevented technicians from using the trucks for personal business, and required technicians to remain available to assist at other jobsites while en route to and from their homes. Then the court had to determine whether Brink’s trucks constituted the employer’s “prescribed work place” under Washington State’s regulatory definition of “hours worked.”
The court reasoned that driving the trucks is an integral part of the work performed by the technicians.
“The nature of Brink’s business requires technicians to drive the Brink’s truck to reach customers’ homes and carry tools and equipment necessary for servicing and installing home alarm systems,” states the court. “Technicians in the HDP report to the Kent office only once each week to refill supplies and attend the weekly company meeting. In addition, the Brink’s trucks serve as the location where technicians often complete work-related paperwork because company policy dictates that employees must complete all paperwork either at the customer’s home or in the Brink’s truck. Finally, like a work premises, Brink’s requires employees in the HDP to ‘ensure that the vehicle is kept clean, organized, safe and serviced.’ Based on these undisputed facts, we hold that the Brink’s trucks constitute a ‘prescribed work place.’”
Virginia Medical Supplies Co. Held Liable to its Employees for Failing to Protect them from Coworker’s Shooting Spree
A tort lawsuit was brought against the employer by the family of one of two employees fatally injured when a coworker (on May 16, 2006) walked into his office armed with two handguns, and an allegedly lethal delusion that he was about to be fired by the company. The gunman fatally shot two employees, and three other coworkers escaped. Following a long standoff with police, the gun-toting office worker fatally shot himself in the head.
The family of the second fatally injured coworker filed a tort claim (a tort is wrongful conduct by one person that results in injury to another) against the company for negligently retaining this delusional coworker, alleging that management knew or should have known of the violent tendencies of the worker, and did not investigate or take reasonable steps to correct the situation.
What evidence could plaintiffs potentially present to support such a “negligent retention” of a dangerous employee claim? Generally, the following are fertile plaintiffs’ areas:
• Statements by coworkers of reporting how the victim plaintiff feared for her life;
• Fear that the coworker would bring guns to work to kill his coworkers;
(Evidence Note: This second-hand testimony is admissible in states having a Deadman’s Statute exempting such testimony from hearsay objections.)
• A claim of an obvious behavior pattern or office common knowledge of the problem employee;
• Threatening e-mails to the victim by the violent employee surfaced to management or e-mails pleading with management for help in getting the situation straightened out;
• Statements overheard from victims or coworkers to the violent propensity employee to “knock it off,” or words to that effect;
• Absence of any employer antiviolence workplace policy or training;
• Failure of management to act or resolve tensions once notified of any problem employee or threatening words or conduct.
Juries can react negatively to do-nothing management efforts in these types of tort cases. The Virginia jury awarded $3.1 million in a verdict for one employee victim, and that verdict has been appealed. But the range of preventive or resolution options for management, once it has an awareness of a gun-toting or violent-statements-making employee, should be thoroughly explored and documented once its “antennae are up.” Training, work rules and prevention programs against workplace violence help on the front end, as well as prompt, fair investigations and employee counseling or even required medical exam(s) discipline/termination on the other end of the spectrum. MF
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