Florida Court Stresses There is No “Field Employee” Exception to Statutory Going and Coming Rule
A Florida appellate court held that a judge of compensation claims committed error when he determined that a construction worker who sustained severe injuries in a vehicular accident as he drove from his home to his first work assignment for the day, while not a “traveling employee,” was nevertheless a “field employee” entitled to compensation [DSK Grp. Inc. v. Hernandez, 2022 Fla. App. LEXIS 2943 (1st DCA, Apr. 27, 2022)]. The court said there was no basis for such a special designation of the employee. Moreover, the injured employee was not “at work” until he reached his first assignment and checked in with his cell phone. He was merely a typical commuting employee under the terms of the statute [§ 440.092(2), Fla. Stat.]. That the employee received a credit card allowing him to purchase $165 in gas each month did not alter the situation. That payment was not provided to him to reimburse him for his commuting expenses, but rather to defray the cost of driving from one job site to another.
Background
DSK Group (“DSK”), an employee-leasing company, provided Hernandez to KBF Renovations, a company that does residential remodeling. Hernandez was paid on an hourly basis, being compensated only for his actual work done at different job sites. The job sites were the homes KBF had contracted to renovate, and KBF would direct Hernandez to which homes he would be working on each day. Occasionally, Hernandez would have to drive to the KBF office to pick up supplies or to attend a safety meeting before going to a job site.
Hernandez routinely drove from his house to the first job site in the morning, and then from job site to job site throughout the day. Hernandez supplied his own car to do this. As he drove to the first job, between jobs, and from the last job back to his home, his car typically would be loaded with equipment and materials that KBF supplied for his use at the jobs.
As an hourly employee, Hernandez was paid only for the time he was “on the clock.” This time ran from when he “punched in” using his cell phone after he arrived at the first house of the day to begin work. He had to “punch out” for his lunch break, but he otherwise would be on paid time until he clocked out as he left the last job site of the day to drive home.
While KBF did not provide gas reimbursement to Hernandez and employees like him, it did provide him with a gas credit card in its name to help offset some of his fuel expenses. The card had a monthly limit of $165.
One morning, as Hernandez drove from his home to the first remodeling job of the day, a drunk driver collided with Hernandez’s car, causing him bodily injury and lost work. He filed a petition for benefits under the Florida Workers’ Compensation Law, which the carrier controverted on behalf of KBF.
Judge of Compensation Claims: “Going and Coming” Rule Did Not Bar Claim
Hernandez relied solely on the “traveling employee” exception in § 440.092(4), Fla. Stat., to get around the “going or coming” exclusion in subsection two of the same statute. The JCC determined that Hernandez did not meet the criteria to be treated as a “traveling employee.” Without identifying an alternative statutory exception, the JCC nevertheless refused to apply the “going or coming” exclusion and concluded that Hernandez’s accidental injury was compensable. KBF appealed.
Appellate Court Reverses
According to the appellate court, the JCC relied on three facts to reach his conclusion:
- That Hernandez worked as a “field employee” rather than at KBF’s premises;
- That Hernandez transported materials and tools in his car; and
- That KBF provided Hernandez the $165 gas allowance.
The court noted the pertinent statutory language regarding the “going and coming” exclusion:
An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer [§ 440.092(2), Fla. Stat.].
JCC Misunderstood Rule
Because the going and coming rule had been codified as legislative policy, the court stressed that the JCC was not free to refuse application of the statutory rule on a basis not spelled out in text. According to the appellate court, the JCC mistakenly understood the going or coming exclusion to apply only to workers who commute between home and the employer’s premises. The court stressed, however, that by its terms, application of the statutory exclusion did not turn on whether the employer owned the location where the work was to be performed. The statutory exclusion applied when an employee suffered injury while he or she was going to or coming from work.
No Statutory Authority for “Field Employee” Exception
The court noted that there was no question that Hernandez’s work did not start until he arrived at the first job of the day and clocked in. The driving that Hernandez did to get to the first job site of the day, and the driving he did to get home from the last site of the day, was “going to” and “coming from” the “work” he was paid to do when he was at the job sites. No textual basis existed to support what appeared to be the JCC’s exception for “field employees” who perform work away from an employer-owned location.
“Traveling Employee” Statute Did Not Aid Hernandez
The court noted that on appeal Hernandez attempted to salvage the compensability determination by arguing the JCC reached the right result but should have and could have done so by applying the “traveling employee” exception to the going and coming rule. Citing § 440.092(4), Fla. Stat., the court stressed that the traveling employee rule allowed compensation only if the injury arises out of and in the course of employment while he or she is actively engaged in the duties of employment. The court noted, however, that subsection (4) did not include travel to and from work. The court continued:
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. An employee can rest assured that an accidental injury he suffers while traveling remains compensable, regardless of where he is traveling from or to, if the travel itself is part of the work [Opinion, pp. 14-15].
The court reasoned that with the purpose of the “traveling employee” exception in mind, Hernandez easily fell outside the designation. Hernandez was not in some compensation status at the time of his crash. He was not compensated in any way for his time spent driving to the first job or from the last job of the day; was not directly reimbursed for the mileage between his home and the first or last job; and did not engage in any compensated employment activity at home before he left for or returned from other compensated employment activity.
The court added that none of the evidence regarding the monthly $165 company credit card allowance for gas demonstrated that the employer intended to reimburse Hernandez for any specific mileage cost he incurred between his home and the job sites. Hernandez, then, could not have been a “traveling employee” at the time of the crash because he had not yet clocked in and arrived at “work.” Rather, Hernandez was a typical commuting employee, whose compensated hours started only upon his arrival at work and ended upon his departure for home at the end of the day. The court held the JCC erred in his conclusion to the contrary.