Courtesy shuttle time from an off-site parking lot to work is not compensable

THE COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF LABOR AND WORKFORCE DEVELOPMENT
DEPARTMENT OF LABOR STANDARDS

CHARLES D. BAKER RONALD L. WALKER, II
GOVERNOR SECRETARY
KARYN E. POLITO WILLIAM D. MCKINNEY
LIEUTENANT GOVERNOR DIRECTOR

                                                                         August 29, 2016

    Brad MacDougal
    Associated Industries of Massachusetts
    1 Beacon Street, 16th Floor
    Boston MA 02108

    RE: Courtesy Shuttle Services to Place of Work.

    Dear Mr. MacDougall,

    This letter is written in response to your request for an opinion letter regarding whether or
    not the time spent traveling between an off-site parking lot and the workplace in a
    company-provided courtesy shuttle is considered "working time" thus, requiring
    compensation.

    Under the Massachusetts Minimum Fair Wage Law, M.G.L. c. 151, and regulations
    promulgated thereunder, 454 C.M.R. §27.04, travel to an employee's regular work site at
    the beginning of the workday and travel from the same site at the end of the work day is
    not "working time," and therefore is not compensable time. Therefore, so long as the
    shuttle service not "required" and transportation is offered at the beginning and end of
    the workday, your client need not pay for the travel time.

     This situation is analogous to others previously considered by the Department; for
     instance, a general contractor who chartered a boat to transport workers to an island,
     otherwise accessible by public transportation, did not need to compensate the workers
     who voluntarily accepted his private-ferry service for their commute over to the island
     worksite.

     When an employee uses employer-provided transportation for travel to and from work,
     DLS determines the start of the work day in a manner consistent with analogous federal
     law, the federal Fair Labor Standards Act (FLSA) and the Portal-to-Portal Act of 1947, as
     amended by the FLSA Amendments of 1996. See Goodrow v. Lane Bryant, Inc., 423
     Mass. 165, 169-170 (2000) (in the absence of a statutory definition, we may look to
     interpretations of analogous federal statutes for guidance).

     The mere fact that the employee is traveling in a company-provided vehicle, does not, in
     and of itself, transform ordinary commuting time into compensable working time,
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provided that: 1) the vehicle is of the type that does not impose a greater difficulty to
operate than a vehicle normally used for commuting; 2) the employee incurs no out-of-
pocket expenses for driving, parking, or otherwise maintaining the employer's vehicle; 3)
travel is within the normal commuting area for the employer's business; and 4) use of the
employer's vehicle is subject to an agreement on the part of the employer and the
employee, or his or her representative, the employee's home to work travel does not
constitute compensable working time. See e.g. U.S. Department of Labor Wage and Hour
Division Opinion Letters, dated April 18, 2001 & January 29, 1999. See MW Opinion
Letter 2003-006, dated May 16, 2003, adopting federal law treatment of this issue.

These guidelines come from the Employee Commuting Flexibility Act of 1996, which
amended the Portal-to-Portal Act by adding the provision concerning use of employer-
provided vehicles, and from subsequent DOL opinion letters interpreting that provision.
The intent of this provision was to clarify that otherwise non-compensable commuting
time is not made compensable merely because the employee uses an employer-provided
vehicle. United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1117
(10th Cir. 1999). The intent was not to create another rule whereby commuting time in
employer-provided vehicles would become part of an employee's principal activities and
become compensable working time. Adams v. U.S., 65 Fed. Cl. 217, 225 (2005). See also
United Transp. Union Local 1745 at 1120; Manners v. State of New York, 183 Misc.2d
382, 387-389 (2000).

Given these guidelines and the facts as presented, that is, that employees are not
required to report to the parking lot, are not mandated to take the shuttle bus, are free to
utilize other methods to get them to their store-front workplace, are not charged for the
transportation service, and are free at the end of the day to leave work and to retrieve
their vehicles by whatever manner and at whatever time they please, it is this
Department's determination that state law does not require that these employees be paid
for travel time while taking advantage of the shuttle service to the job site. Providing
company-sponsored shuttle services does not transform ordinary commuting time into
compensable working time. If the employees are merely traveling to and from the job
site, and performing no activity that is integral and indispensable to the principal work
activity, then the travel time is not compensable.

Please note that, in the event an employee were required to report to an off-site parking
lot and to take a shuttle bus, then the work day would begin upon arrival at the designated
parking location and would not end until they were delivered back to the parking area at
the end of the day. However, that is not the situation herein described.

I hope this information has been helpful. If you have any further questions, please feel
free to contact me.

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Footnote:

1. 454 C.M.R. §27.04 (c) If an employer requires an employee to report to a location other than the work site or to
   report to a specified location to take transportation, compensable work time begins at the reporting time and includes
   subsequent travel to and from the work site.