Greetings,

Over the last week I have received several questions about compensability of accidents in parking lots and being off the clock. 

First issue that needs to be sorted out is whether the parking lot is considered the employer’s premises.   Under the Premises Rule, even if an employee is clocked out, and is on their way to their car, they are in the course and scope of employment if they are still on the employer’s premises.  In the Vigliotti v. Kmart case, the claimant clocked out and then slipped and fell on her way out the door.  The 1^st DCA said:

[A]n injury is deemed to have occurred in the course and scope of employment if it is sustained by a worker, on the employer’s premises, while preparing to begin a day’s work or while doing other acts which are preparatory or incidental to performance of his or her duties, and which are reasonably necessary for such purpose.

So we need to ask if the employer:

1. Owned the parking lot, or
2. Leased the parking lot, or
3. Maintained the parking lot, or
4. Controlled the parking lot, or
5. Directed the employee where to park (there is a case where they told the claimant where NOT to park, and that was not compensable because she wasn’t controlled by the ER where she did actually park).

It does not matter if the employee was clocked out.  

Now of course there are exceptions, such as a deviation.  There is a case where a claimant opened his car door and his gun falls out and he shoots himself, not compensable.  You can’t make this stuff up. Galaida v. Autozone, 882 So.2d 1111 (Fla. 1st DCA 2004).

Once the claimant pulls out of the employer premises parking lot onto a public road, they are no longer in the course and scope of employment, and the Coming and Going Rule applies (subject to all of those lovely exceptions such as special errand, traveling employee, special hazard, etc..but that’s a whole other tip).

An injury on a lunch break, clocked out, in your car BUT on Premises may likely be compensable.  Off-premises lunch break injuries are typically not compensable, even if clocked in.   The clocked in or out factor is not as relevant as the issue of control by the employer.   On Premises, they can run out to your car and say clock in and get back to work, so still under the control of the employer.  Off Premises, eating a roast beef sandwich and tater tots at Beefy King in Orlando, the boss can’t find you to say get back to work (or share your tots).   Off Premises you are not under the employer’s control, even if you are clocked in and paid for lunch.

As always, let me know if you have any questions.

Sincerely

Morgan Indek | Managing Partner