Sarrazin v. Coastal, Inc.

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 SARRAZIN v. COASTAL, INC.—CONCURRENCE

McDONALD, J., with whom PALMER, J., joins, con-
curring. I agree with the majority that an interpretation
of the travel time regulation, § 31-60-10 of the Regula-
tions of Connecticut State Agencies, included in a guide-
book published by the Connecticut Department of
Labor (department) is not entitled to deference. In con-
cluding that federal wage law preempts state law with
respect to the claim of the plaintiff, Brian Sarrazin,
however, the majority effectively concludes that § 31-
60-10 provides no basis for deeming the hours of an
employee’s regular commute to and from work compen-
sable, irrespective of whether the employee is required
to perform services for the employer’s benefit during
that commute and whether the performance of such
services imposes substantial burdens on the employee.
In so concluding, the majority adopts a construction
that not only conflicts with evidence of the department’s
view of its own regulation, but, more importantly, is at
odds with the language of the regulation itself and the
remedial purposes of Connecticut’s wage enforcement
scheme. It is my view that the regulation’s capacious
text affords an equal or greater basis for potentially
compensable work time than is available under federal
law. Therefore, I would conclude that federal law does
not preempt state law in the present case.1 Nonetheless,
in light of the trial court’s findings regarding the plain-
tiff’s use of a vehicle provided by the defendant, Coastal,
Inc., to transport tools to his work site, the trial court
properly determined that the plaintiff is not entitled to
wages for the period of his commute. Therefore, I also
would affirm the trial court’s judgment, but on the basis
of state law, rather than the federal law on which the
majority and the trial court have relied.
The plaintiff sought compensation under General
Statutes (Supp. 2014) §§ 31-60, 31-71b, General Statutes
§ 31-76c and under § 31-60-10 (b) of the regulations. In
light of the majority’s reliance on subsections (c) and
(d) of § 31-60-10 to support its conclusion that subsec-
tion (b) unambiguously does not apply to activities that
occur in an employee’s usual commute to and from
work, it is necessary and useful to consider all of the
subsections of the regulation. Section 31-60-10 provides
in relevant part: ‘‘(a) For the purpose of this regulation,
‘travel time’ means that time during which a worker is
required or permitted to travel for purposes incidental
to the performance of his employment but does not
include time spent in traveling from home to his usual
place of employment or return to home, except as here-
inafter provided in this regulation.
‘‘(b) When an employee, in the course of his employ-
ment, is required or permitted to travel for purposes
which inure to the benefit of the employer, such travel
time shall be considered to be working time and shall
be paid for as such. . . .
‘‘(c) When an employee is required to report to other
than his usual place of employment at the beginning of
his work day, if such an assignment involves travel time
on the part of the employee in excess of that ordinarily
required to travel from his home to his usual place
of employment, such additional travel time shall be
considered to be working time and shall be paid for
as such.
‘‘(d) When at the end of a work day a work assignment
at other than his usual place of employment involves,
on the part of the employee, travel time in excess of
that ordinarily required to travel from his usual place
of employment to his home, such additional travel time
shall be considered to be working time and shall be
paid for as such.’’ (Emphasis added.)
I agree with the majority that subsection (a) of § 31-
60-10 is effectively definitional rather than substantive,
because, unlike subsections (b), (c), and (d), it does
not set forth any circumstance in which an activity is
compensable. Indeed, by providing in § 31-60-10 (a) that
travel time ‘‘does not include time spent in traveling
from home to [an employee’s] usual place of employ-
ment or return to home, except as hereinafter provided
in this regulation,’’ the regulation acknowledges a well
established presumption under labor law, which I dis-
cuss later in this opinion, that time spent commuting
to work is generally not compensable. Contrary to the
majority, however, I do not construe this language to
mean that, unless a subsection that follows expressly
incorporates language that refers to time traveling from
home to one’s usual place of employment or return
home, as do subsections (c) and (d), such time cannot
be deemed ‘‘travel time’’ within the meaning of subsec-
tion (a). Rather, I would conclude that this exception
necessarily applies to subsection (b).
There is abundant evidence to support this conclu-
sion. First, for purposes of structure and clarity, it
would be illogical to immediately follow the phrase
‘‘except as hereinafter provided in this regulation’’ in
§ 31-60-10 (a) with the only subsection to which that
exception does not apply. Indeed, this dissonance is
even more obvious under the original version of the
regulation promulgated in 1951, which was identically
worded in all material respects but contained no subsec-
tions, so that the language in subsection (b) of § 31-60-
10 was then in the sentence that immediately followed
the phrase ‘‘except as may hereinafter be provided in
this regulation.’’ See Regs., Conn. State Agencies (1951)
§ 180-10. Moreover, the definition of travel time under
subsection (a) of § 31-60-10 makes no sense as applied
to subsections (c) and (d). Subsections (c) and (d) do
not set forth any circumstance in which an employee
may be entitled to compensation for travel to or from
his usual place of employment. Rather, subsections (c)
and (d) deem compensable that travel time ‘‘in excess
of that ordinarily required to travel’’ to or from an
employee’s ‘‘usual place of employment’’ when an
employee is traveling to and from a work location ‘‘other
than his usual place of employment . . . .’’ (Emphasis
added.) Regs., Conn. State Agencies § 31-60-10 (c) and
(d). Thus, because the exception provided under sub-
section (a) is essentially irrelevant to subsections (c)
and (d), it logically would apply to subsection (b).
I next consider the text of subsection (b) of § 31-60-
10, providing for travel time to be paid as working time
if the employee is permitted or required to travel ‘‘in
the course of his employment . . . for purposes which
inure to the benefit of the employer . . . .’’ Undoubt-
edly, this language embraces circumstances in which
the employee travels for employment related purposes
after the employee arrives at the work site, during his
or her workday. This language also, however, is suffi-
ciently broad to extend to certain, but perhaps infre-
quent, circumstances during the employee’s travel to
and from the usual place of employment. Indeed, had
the department intended this subsection to be limited
to travel that occurs after the workday commences,
presumably it would have used the same clear language
to that effect that it did in other contemporaneous regu-
lations addressing travel time for specific professions
and classes of workers when it drafted the original
regulation in 1951. See, e.g., Regs., Conn. State Agencies
(1949) § 180-4-2 (working time includes ‘‘all the time
during which an employee is required, instructed or
requested by an employer to travel after the beginning
and before the end of the regular work day to a place
other than the regular of employment’’); see also Regs.,
Conn. State Agencies (1951) §§ 180-4-9 and 180-10-9
(referring to ‘‘time during which an employee is
required, instructed, or requested by an employer to
travel after the beginning and before the end of the
regular work day’’).
The department’s use of the term ‘‘in the course of
his employment’’ in § 31-60-10 (b) also is instructive.
This term is foundational language with deep roots in
workers’ compensation law, which is related to the
wage enforcement scheme. See Shell Oil Co. v. Ricciuti,
147 Conn. 277, 282–83, 160 A.2d 257 (1960); Morales v.
PenTec, Inc., 57 Conn. App. 419, 428, 749 A.2d 47 (2000).
Consistent with § 31-60-10 (a), workers’ compensation
law long has recognized that, as a general rule, travel
to and from work is not deemed to be conduct that
occurs in the course of employment, and thus is not
compensable. See Dombach v. Olkon Corp., 163 Conn.
216, 222, 302 A.2d 270 (1972) (‘‘An injury sustained
on a public highway while going to or from work is
ordinarily not compensable. A principal reason for this
rule is that employment ordinarily does not commence
until the claimant has reached the employer’s premises
. . . . Furthermore, in cases falling within the ordinary
rule, the employee’s means of transportation, as well
as his route are entirely within his discretion, unfettered
by any control or power of control on the part of the
employer.’’); Whitney v. Hazard Lead Works, 105 Conn.
512, 517, 136 A. 105 (1927) (‘‘[t]he employees of a busi-
ness concern cannot, as a general rule, be regarded as
in the course of their employment while going to or
returning from the place of their employment’’). Signifi-
cantly, however, there are exceptions to that rule that
consider, inter alia, whether a benefit inures to the
employer, a consideration also present in § 31-60-10 (b),
as well as whether the activity is ‘‘incidental to’’ the
employment, a consideration in § 31-60-10 (a). See
McNamara v. Hamden, 176 Conn. 547, 551–52, 398 A.2d
1161 (1979) (‘‘incidental to’’ employment); id., 552–53
(benefit to employer); Dombach v. Olkon Corp., supra,
222 (citing exception ‘‘where the employee is injured
while using the highway in doing something incidental
to his regular employment, for the joint benefit of him-
self and his employer, with the knowledge and approval
of the employer’’); Whitney v. Hazard Lead Works,
supra, 517 (‘‘‘incidental to’ ’’ duties of employment).
Given the well established significance of the term ‘‘in
the course of his employment,’’ it is reasonable to pre-
sume that the department was aware of the meaning
ascribed to this term when it drafted the travel time
regulation without providing a definition to differentiate
its meaning from that applied in a related statutory or
regulatory scheme. Accordingly, the use of such a term
in § 31-60-10 (b) further suggests that a usual commute
may be compensable if the employee is engaged in an
activity that not only is incidental to his or her employ-
ment, but also occurs in the course of his employment
and inures to the benefit of the employer.2
Finally, as I indicated at the outset of this opinion, I
agree with the majority that we should not defer to the
interpretation of § 31-60-10 set forth in the department’s
guidebook because it was not formally promulgated.
Nonetheless, the guidebook provides some evidence
that the department construes its own regulation to
provide for compensation during a usual commute in
certain circumstances.3
In light of all of this evidence, I conclude that § 31-
60-10 (b) treats travel time during an employee’s usual
commute as working time under the admittedly limited
circumstances set forth therein. Indeed, at the very
least, the aforementioned considerations should com-
pel a conclusion that the regulation is ambiguous as to
its application to a usual commute. When a statute
or regulation is remedial, as is the wage enforcement
scheme, ambiguity must be resolved in favor of the
class intended to be protected, employees. See State v.
AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn.
80, 93, 777 A.2d 169 (2001); Tianti v. William Raveis
Real Estate, Inc., 231 Conn. 690, 696, 651 A.2d 1286
(1995). It would be both inequitable and contrary to the
scheme’s remedial purpose to preclude compensation
if an employer has required an employee to perform
services during his commute that are related to his
employment, that inure to the employer’s benefit, and
that impose burdens on the employee such that the
time is not the employee’s to use for his or her own
purposes. For example, an employee might be required
to drive a company van from his home and to transport
all of the members of his work crew from their homes
to the work site and back. Under such circumstances,
the employee would be performing a service for the
employer related to his employment while lacking the
freedom that the employee otherwise would have if
such services were not required, i.e., using his own
vehicle to transport family members or goods for his
personal needs, taking care of personal errands along
the way, etc.
Conversely, however, if an employer were to require
or permit the employee to perform an activity incidental
to the employment that conferred a de minimis benefit
on the employer and that imposed no greater burden
on the employee than that incurred in his or her usual
commute or imposed even a de minimis burden, deem-
ing such time compensable would be inconsistent with
the principles reflected in the wage laws. Under the
wage laws, an employee is paid ‘‘wages’’ for ‘‘hours
worked.’’ See General Statutes § 31-71a (3) (defining
wages);4 General Statutes § 31-76b (2) (A) (defining
hours worked).5 The meanings ascribed to these terms
reflect the fundamental principle that an employee’s
wages are linked to his ascertainable efforts rendered
for the benefit of the employer. See Weems v. Citigroup,
Inc., 289 Conn. 769, 782, 961 A.2d 349 (2008) (recogniz-
ing wages are linked to ascertainable efforts of particu-
lar employee); West v. Egan, 142 Conn. 437, 443, 115
A.2d 322 (1955) (‘‘[t]he legislative policy of the minimum
wage law is to establish a wage fairly and reasonably
commensurate with the value of a particular service or
class of service rendered’’ [internal quotation marks
omitted]). The scheme also reflects an understanding
that an employee must be compensated if the employee
is burdened by a condition of employment even if the
employer obtains only a de minimis benefit. See General
Statutes § 31-76b (2) (A) (including as hours worked,
inter alia, ‘‘the time when an employee is required to
wait on the premises while no work is provided by the
employer’’). In other words, the scheme recognizes an
exchange of consideration—some burden on or detri-
ment to the employee for which wages are paid in
relation to a benefit conferred on the employer. There-
fore, interpreting the travel time exception to apply to
any circumstance conferring any benefit on the
employer no matter how de minimis without consider-
ing whether the employee incurs any burden beyond
his or her normal commute, which would otherwise
be noncompensable, would be inconsistent with the
purposes of the wage enforcement scheme. Similarly,
because in some instances the use of a company vehicle
in lieu of an employee’s own vehicle can confer a sub-
stantial financial benefit to the employee, it would be
inconsistent with the wage enforcement scheme to con-
strue the regulation to require the payment of wages
for an employee’s usual commute if the use of the
employer’s vehicle results in a net benefit to the
employee, even if that use also results in a de minimis
benefit to the employer.
Therefore, consistent with the text of § 31-60-10, as
well as the foundational principles and remedial pur-
pose of the wage enforcement scheme, I would interpret
§ 31-60-10 (b) to mean, at the very least, that: (1) the
employer must obtain more than a de minimis benefit
from a service, which is incidental to the employment,
performed by the employee during the usual commute;
and (2) the employee must incur more than a de minimis
burden beyond his or her usual commute.6 In circum-
stances in which the service provides a joint benefit to
the employer and employee, the benefit to the employee
would need to be weighed against any detriment to the
employee to ascertain whether, under the totality of
circumstances, the employee has assumed more than a
de minimis burden beyond the commute itself. Because
this construction provides equal or potentially greater
benefits than those afforded under federal law; see part
II of the majority opinion (explaining scope of federal
law); I would conclude that § 31-60-10 is not preempted
with respect to the plaintiff’s claim for benefits in the
present case.
With respect to that claim, the trial court found that,
although the defendant required the plaintiff to use the
company vehicle as a condition of his employment, the
use of the vehicle conferred a benefit on the plaintiff.
The court further found that the fact that some tools
were stored in the vehicle and were used at the employ-
er’s job sites was merely incidental to the use of the
vehicle for commuting. Therefore, the plaintiff is not
entitled to have his commuting time paid as working
time under § 31-60-10 (b). Although I recognize that my
analysis yields the same result as the majority opinion
in the present case, and that federal wage law likely
would require the payment of wages for an onerous
burden imposed by an employer on an employee’s com-
mute, these facts do not relieve me of my obligation to
ascertain whether our state law recognizes an employ-
ee’s right to the payment of wages.
I respectfully concur.
1
I agree with part I of the majority opinion concluding that the savings
clause of the federal Fair Labor Standards Act, 29 U.S.C. § 218 (a), applies
to § 31-60-10 of the regulations.
2
I recognize that an injury may be deemed to have occurred in the course
of employment for purposes of workers’ compensation law even when the
employee was not paid wages for the activity that gave rise to the injury.
See Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219, 232,
875 A.2d 485 (2005) (‘‘[T]he fact that the employee is not paid for his travel
time does not mean that the trip was not in the course of employment. . . .
Payment for time is only one of the evidences that the journey itself was
part of the service.’’ [Citations omitted; internal quotation marks omitted.]).
Nonetheless, because § 31-60-10 (b) also requires that a benefit inure to the
employer and that the act is incidental to the employment, it is more limiting
than the ‘‘in the course of employment’’ requirement under workers’ compen-
sation law.
3
Unfortunately, the department did not request permission to file an
amicus brief in this case to shed light on the basis of its construction of
the regulation. The department’s perspective on the enigmatic nature of this
regulatory scheme would no doubt have been of assistance to the court.
4
Wages are defined as ‘‘compensation for labor or services rendered by
an employee, whether the amount is determined on a time, task, piece,
commission or other basis of calculation . . . .’’ General Statutes § 31-
71a (3).
5
‘‘‘Hours worked’ include all time during which an employee is required
by the employer to be on the employer’s premises or to be on duty, or to
be at the prescribed work place, and all time during which an employee is
employed or permitted to work, whether or not required to do so, provided
time allowed for meals shall be excluded unless the employee is required
or permitted to work. Such time includes, but shall not be limited to, the
time when an employee is required to wait on the premises while no work
is provided by the employer. (B) All time during which an employee is
required to be on call for emergency service at a location designated by the
employer shall be considered to be working time and shall be paid for as
such, whether or not the employee is actually called upon to work. (C)
When an employee is subject to call for emergency service but is not required
to be at a location designated by the employer but is simply required to
keep the employer informed as to the location at which he may be contacted,
or when an employee is not specifically required by his employer to be
subject to call but is contacted by his employer or on the employer’s authori-
zation directly or indirectly and assigned to duty, working time shall begin
when the employee is notified of his assignment and shall end when the
employee has completed his assignment . . . .’’ General Statutes § 31-76b
(2) (A).
6
In light of the trial court’s findings in the present case, which I discuss
later, it is not necessary to define the precise contours of the regulation.
Indeed, I imagine that this court’s decision in the present case will prompt
the department to commence formal rule-making proceedings to address
these and related issues.