Stevens v. Brink's Home Security, Inc.

¶27

Madsen, J.

(concurring) — The majority determines that the drive time at issue is compensable under the Minimum Wage Act (MWA), chapter 49.46 RCW, by applying the definition of “hours worked” in WAC 296-126-002(8). But this results in a strained, ultimately unsatisfactory analysis where the interior of a company truck must be described as “premises” or “a prescribed work place.” Be*53cause the Department of Labor and Industries has not only defined “hours worked” in the rule but has also issued a policy statement that explains in more detail how “hours worked” are to be determined in the specific context at issue here — travel in company vehicles — considering this policy makes more sense and yields a more reasonable analysis.

¶28 WAC 296-126-002(8) defines the term “hours worked” as “all hours during which the employee is authorized or required by the employer to be on duty on the employer’s premises or at a prescribed work place.” The first part of this definition presents no problem — the technicians are “on duty” at all times when they drive the trucks. This is because the company’s written policy provides that during drive time, the technicians drive the company vehicle subject to restrictions imposed by the company and they are subject to redirection by their supervisors to assist with other jobs or to answer service calls while en route to and from their homes.

¶29 Applying the regulation’s requirement that the technicians must be on duty “on the employer’s premises or at a prescribed work place” is more problematic. Indeed, the majority’s strained analysis shows the difficulty with trying to shoehorn a company truck into a rigid reading of “employer’s premises” or “prescribed work place.” I am unconvinced by this implausible literal application of the terse phrases in the regulation. But the fact that the definition produces an unsatisfactory analysis does not mean that travel in a company vehicle is not compensable. For example, if a technician picks up a company truck at the office and drives it to the first job assignment of the day, no one would dispute that this travel time constitutes “hours worked” for which the technician must be compensated. Likewise, the time spent by all technicians driving in company trucks from job assignment to job assignment throughout the day also qualifies as hours worked and without doubt is compensable travel time. Thus, some additional guidance is needed to satisfactorily deal with time spent traveling in a company vehicle.

*54¶30 Accordingly, the Department of Labor and Industries’ explanation of the term “hours worked” in its Administrative Policy ES.C.2 is relevant. This policy, intended only as a guide, covers a wide variety of situations involving travel time. While having no force or effect as a law or regulation, the following section of this policy is persuasive in the context here as a well-reasoned interpretation of the “hours worked” term by the same agency that defined the term in WAC 296-126-002(8):

Time spent driving from home to the job site, from job site to job site, and from job site to home is considered work time when a vehicle is supplied by an employer for the mutual benefit of the employer and the worker to facilitate progress of the work. All travel that is an integral and indispensable function without which the employee could not perform his/her principal activity, is considered hours worked. Employment begins when the worker enters the vehicle and ends when the worker leaves it on the termination of that worker’s labor for that shift.

Br. of Resp’ts, App. C (Wash. Dep’t of Labor & Indus., Employment Stds., Admin. Policy ES.C.2, at 2 (Jan. 2002)).

¶31 An agency policy can be useful in determining the meaning of statutory terms. See generally, e.g., Stahl v. Delicor of Puget Sound, Inc., 148 Wn.2d 876, 886-87, 64 P.3d 10 (2003). They need not be promulgated with the formality of rule making but must represent a uniformly applied interpretation. See generally Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 815, 828 P.2d 549 (1992).

¶32 With the more detailed explanation provided in Administrative Policy ES.C.2, which is specifically geared to questions involving travel like the drive time at issue here, a better assessment can be made of the technicians’ travel to jobsites from their homes and from jobsites to their homes using the company’s vehicles. Further, it is an analysis that implicitly recognizes the indisputable fact that the technicians derive personal benefit from use of the company’s vehicles — after all, use of the company’s trucks can and has made it possible for technicians to avoid *55otherwise necessary expenditures involved in using private vehicles to commute.

¶33 The fact that a technician personally benefits does not preclude the conclusion that travel from and to the home is compensable time. Rather, the inquiry is one of mutual benefit vis-a-vis the job. In my view, the technicians’ drive time meets the pertinent explanation of “hours worked” in the policy.

¶34 The technician is, of course, benefited by having the truck and equipment transported as needed so work can proceed. The employer also benefits because when a technician leaves his home for a customer’s home, he or she is engaged in the transport of essential supplies for the jobs he does — an essential part of his work function. If the technician is on-call, he or she also has access to supplies in another truck at another technician’s home, which may be closer than the company’s branch office. The company has the ability to assign technicians traveling homeward to a late service call or to a jobsite where another technician needs assistance to finish a job in progress. The trucks are emblazoned with Brink’s name and a 1-800 telephone number, which advertises for the company, and the additional travel time and traveling distance from home to the first jobsite and from the last jobsite homeward provides additional time and place for dissemination of this advertising. The evidence in the record also shows that parking at the company’s Kent facility is limited, and the home dispatch option relieves the company of the problem of finding adequate parking should all of the technicians commute in personal vehicles. All of these benefits facilitate the work performed, in both a job-specific as well as, insofar as the company is concerned, a more global sense.

¶35 Use of the company’s truck to travel from and to the home inures to the mutual benefit of the employer and the worker to facilitate progress of the work, as contemplated under the policy.

*56f 36 Under this analysis, I agree with the result reached by the majority.

Fairhurst, J., concurs with Madsen, J.