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Employment Blog

Texting While Driving - Illegal But Paid

Authored by Dean R. Dietrich
Posted on May 21, 2014
Filed under Employment

Many municipalities and states have adopted a law that prohibits texting while someone is driving. Individuals are prohibited from texting or even dialing the phone while driving. This prohibition is probably violated much more than it is complied with, but regardless of what the prohibitions may be, employers may still be "on the hook" for paying an employee who is talking or texting while driving if the topic is work related.

There has been a lot of litigation about whether time spent travelling by an hourly employee is compensable. Travel by an hourly paid employee may include (1) the regular commute to and from work; (2) travel during the regular work day; (3) travelling from one place of work to another place of work as part of regular duties; or (4) making a stop for business reasons while travelling to or from work. Under most of these circumstances, the employee will be paid for the time spent performing work and the time spent travelling from one location to another location to perform work duties.

The interesting question is whether an employer is required to pay an employee for the commute time to and from work. Normally, this time is considered non-compensable because it is travel to and from work by the employee and not part of the work duties required to be performed by the employee. If the employee is stopping for business reasons during the commute at the start or end of the workday, it is likely that time would be considered work time because there is a requirement that some level of work be performed for the benefit of the employer. It will depend upon whether the stop for business reasons is incidental or an important requirement for work.

The more challenging question is whether pay should be given to the employee if the employee is talking while travelling and the phone call is business-related. An argument can be made that the employee should be compensated for that time because they are performing work-related business.

In a recent decision by the Connecticut Supreme Court, the Court acknowledged in a footnote, that the employee would be considered performing work if the employer is telephoning an employee during the regular commute time and engaging the employee in a discussion concerning work-related issues. Travel time to and from work may now become more of a work-related activity and subject to pay requirements.