NC Court Narrows State’s Traveling Employee Rule

In a decision that could have important implications for those who travel as part of their work for North Carolina employers, a state appellate court, affirming a decision of the state’s Industrial Commission, held that injuries sustained by a traveling worker when he slipped and fell on a wet spot of a California hotel lobby, did not arise out of and in the course of his employment [McSwain v. Industrial Commercial Sales & Serv., LLC, 2020 N.C. App. LEXIS 250 (Apr. 7, 2020)]. At the time of his injury, the worker was walking to a hotel laundry room adjacent to the lobby in order to retrieve personal laundry. Observing that just prior to the slip and fall, the worker had “visited with other coworkers on the hotel patio consuming alcohol” [Opinion, p. 2] — was the Court and/or the Commission introducing an unproven measure of “fault” into the no-fault workers’ compensation system? — the Court agreed with the Commission that the act of washing his clothes was not the sort of duty necessary for an off-duty, traveling employee. The Commission did not err, therefore, in denying the claim.

Background

McSwain was part of a work crew who flew to California to work on a project for the North Carolina employer. They finished the project a day early and, since it would have cost the employer $2,400 to change the crew’s airline tickets, they were given a free day in California and were to return according to their original schedule.

During the free day, McSwain started a load of laundry in the hotel. As noted by the Court, while waiting for his laundry to finish, McSwain visited with other coworkers on the hotel patio consuming alcohol. When McSwain later walked back inside to retrieve his laundry, he slipped and fell on a wet spot in the hotel lobby.

Both a deputy commissioner and the full N.C. Commission denied the claim, finding that McSwain had failed to prove a causal connection between walking through the hotel to check on his laundry and his employment.

Court of Appeals Decision

Initially, the court of appeals acknowledged that traveling employees are considered to be acting “in the course of” their employment during a trip, except when a distinct departure on a personal errand is shown. The court added that whether a traveling employee’s injury “arises out of” the employment depended upon the facts. The Court reviewed a number of traveling employee cases, noting that, in general, injuries associated while eating (although not choking while eating) and sleeping were compensable. Citing Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964), the Court noted that injuries sustained at a hotel pool were not compensable. The use of the pool in Perry was not an activity calculated to further, directly or indirectly, his employer’s business.

The Court distinguished the instant case from the eating and sleeping cases, stressing that unlike those restorative activities, washing laundry was not always necessary for an off-duty, traveling employee. The Court added that McSwain was not tending to personal needs that had to be met [Opinion, p. 9, emphasis by the Court]. The Court, deferring to what it said were holdings of the state Supreme Court, said there could be no coverage of McSwain’s claim because there was no showing that he had been “engaged in an act calculated to further, directly or indirectly, his employer's business” [Opinion, p. 10].

My Own Passing Shots

First, I’ve read the case twice and I still am left with the question of why the Court felt it necessary to mention that McSwain and others had been visiting on the hotel patio “consuming alcohol.” If, as the Court says, the issue of compensability is whether the action of washing one’s personal laundry was calculated to further the business of the employer — which the Court concluded it was not — the Court’s gratuitous mention of the patio gathering is unnecessary. Does it, however, in not so subtle fashion, introduce a measure of fault into the facts. There was no evidence that there had been excessive drinking. There was no evidence that the slip and fall was brought about by McSwain’s consumption of the alcohol. Maybe it’s just my mood, but I thought fault generally had nothing to do with workers’ compensation claims.

Second, the Court gives lip service to the traveling employee rule — that traveling employees are considered to be acting “in the course of” their employment during a trip, except when a distinct departure on a personal errand is shown. It then appears, as least to me, to establish a completely different rule to follow: that is, a traveling employee’s claim is compensable only if the activity in which he or she is engaged furthers the employer’s business. With all due respect to the panel of judges, you can’t have it both ways. Those two rules are not consistent.