Last week the 1st DCA issued a decision regarding travel to work when the claimant did not have a fixed workplace but rather traveled to various jobsites. The case (DSK Group, Inc. v. Hernandez) is attached.
The claimant was an electrician, and as he was driving in his personal vehicle from his home to the first job of the day he was struck by a drunk driver and injured. He routinely traveled direct from his home to the first jobsite of the day, then between jobs, and from the last job back to his home. Occasionally, he would travel to the employer’s office to pick up supplies or attend meetings. His personal car was typically loaded with equipment and supplies from the employer for use at the jobsites.
The claimant was an hourly employee. He would clock in on his cell phone when he arrived at the first jobsite of the day, and then he would clock out on his phone when he left the last jobsite to drive home. He was not paid for his drive to or from the first and last jobsites of the day. The employer gave him a gas credit card with a monthly limit of $165 for gas only to be used for work but there was no real way to measure that.
The DCA first looked at the “Going and Coming” rule (440.092(2) which excludes injuries that occur on the way to or from work. The court noted the rule does not turn on whether the employer owns the location where the work is to be performed or that it is a fixed location. The DCA stated in this case the claimant’s work did not start until he arrived at his first job of the day. Therefore, his case is not an exception to the “Going and Coming” rule, and not compensable under this theory.
The claimant then argued that he was a traveling employee under 440.092(4). The DCA noted that the statute specifically states that travel to and from work as provided in the “Going and Coming” rule does not make someone a traveling employee. The court noted prior decisions cited by the claimant found the accident compensable because the claimants in those cases were already in “compensated work status”, and Hernandez was not.
The DCA declared ““….work” does not reference a particular location. It references an exchange of the employee’s labor for the employer’s payment of wages, and the compensated labor can be “work” wherever it is performed.” “Put simply, if an employee is being compensated or reimbursed for his time traveling, or if he is traveling between two compensated activities, then he would not be traveling to or from work—even if the travel is to or from his home. This is the essence of the statutory “traveling employee” exception.”
In a footnote, the court also notes the fact he was carrying work materials did not make his trip a special errand or a dual-purpose trip because he was not yet working.
In this case, the DCA found the claimant was a typical commuting employee, and the claim was not compensable.
Morgan Indek | Managing Partner