All out-of-town employee travel time is compensable under Washington law, the state court of appeals recently ruled. The decision confirms the Washington State Department of Labor & Industries’ (L&I) interpretation that all work-related travel time is compensable, regardless of when it takes place. Accordingly, all businesses with hourly employees located in the state should become familiar with the changes.

Facts

L&I issued a citation to an employer for wages owed to four employees following a trip to China. Under an agreement with the workers’ union, the employer paid the employees eight hours per day for travel to, from, and within China but didn’t pay them for all their time spent traveling.

The employees filed wage claims with L&I seeking compensation for all their time spent traveling, including travel to and from airports, all time spent at airports, and all time spent in flight. Under L&I’s definition of “hours worked” in WAC 296-126-002(8) and the guidance contained in its nonpublic desk aid, the department issued a citation to the employer for wages owed to the employees from the trip to China, which the employer appealed.

Analysis

The Washington Court of Appeals held out-of-town travel time constitutes “hours worked” under state law for three reasons.

First, the court distinguished its precedent in Anderson v. State, Dep’t of Soc. & Health Servs., and Stevens v. Brink’s Home Sec., Inc., and held both cases involved interpretations of “hours worked” within the context of an employee’s daily commute while the present case dealt with employees’ out-of-town travel.

Second, the court held L&I’s interpretation of WAC 296-126-002(8) was entitled to deference because it reflected a plausible construction and wasn’t contrary to legislative intent.

Third, the court found L&I’s interpretation was consistent with both the regulation's plain meaning and Washington’s longstanding policy of protecting employees.

Accordingly, the court found the employer liable for unpaid wages and sent the case back to the lower court for further proceedings. Port of Tacoma v. Sacks, No. 54498-9-II, 2021 WL 4271356, at *1 (Wash. Ct. App., Sept. 21, 2021).

Takeaways

Overall, the case presents significant changes for all businesses with employees located in Washington state because all employee time spent traveling out of town is now compensable under state law. Previously in the state and under federal law, you weren’t generally required to pay hourly employees for their time spent traveling outside of normal working hours as long as they didn’t work during the travel.

Now, however, you must compensate Washington employees for all their time spent traveling out of town. Accordingly, all businesses with hourly employees located in the state should revise their travel time policies to ensure compliance with the changes to the law. Finally, you should consult with trusted legal counsel if you have any questions or concerns about paying employees for their time spent traveling.

Samuel N. Jackson is an attorney with Perkins Coie LLP in Seattle, Washington. Jackson represents clients in all aspects of labor and employment litigation in courts, administrative proceedings, and labor arbitrations. He also has handled matters before the National Labor Relations Board, the U.S. Equal Employment Opportunity Commission and state agencies. You can reach him at sjackson@perkinscoie.com.