Travelling Employees

When is a travelling Employee not a "travelling employee?" According to the Georgia Court of Appeals, when the employee has not yet reached his destination. In a decision handed down on 11/21/2012, the Court decided the companion cases of THE MEDICAL CENTER, INC. v. Hernandez et al. (Ga Ct Appeals A12A1292) and HERNANDEZ et al. v. ATLANTA DRYWALL, LLC. (A12A1315). Both cases arose out of the unfortunate death of Juan Alvarez-Hilario and the serious injuries to Celvin Hernandez. Mr. Hernandez and Mr. Alvarez-Hilario were employed by Atlanta Drywall on a church construction project near Columbus, Ga. In the course of their work on the project, Mr. Hernandez and Mr. Alvarez-Hilario would make the four hour drive from Savannah to Columbus in the early morning hours on Monday, would work 10 hour days, stay in a hotel room provided by the general contractor and then return home on Saturday to spend the weekend at home. They were paid only for the hours during which they were working on the job site, were not paid for the travel time to or from Columbus. On Monday morning 2/8/2010 when they were approximately 5 minutes from the job site, Mr. Hernandez and Mr. Alvarez-Hilario were involved in a motor vehicle accident when their truck overturned. Mr. Alvarez-Hilario died in the accident while Mr. Hernandez was hospitalized for weeks with serious injuries. Both claims were denied by the State Board of Worker's Compensation and that decision was appealed to and affirmed by the State Board's Appellate Division and the Superior Court on Appeal. The Court of Appeals accepted the Application for Discretionary Review to decide whether this case was properly viewed as one involving "travelling employees" or the "going to and from work rule." The distinction between the two is significant. It is axiomatic in Ga workers' compensation law that an injury, to be compensable must "arise out of" and occur "in the course of" the employee's job. "Arising out of" refers to what the employee is doing while "in the course of" looks to when and where the employee was doing it. The "Going to and from work" rule addresses the "in the course of" employment portion of the compensability test and provides that an employee's injuries occurring during that period of time when he is going to and from work (his commute time) is NOT compensable. Over the years, the Courts have carved out exceptions to this rule such as for travelling employees. In the case of travelling employees, the Courts have recognized that an employee, being called away from his home in service of his employer has a wider definition of what would constitute "in the course of" his employment. This has, for example rendered compensable injuries that occur in an employee's hotel room and while the employee is eating. Such activities if performed in a reasonable and prudent manner for the health and comfort of the employee would be considered as arising out of and occuring in the course of his employment. The employee in these circumstances is generally considered as being engaged in "continuous employment." At first blush, then, it might seem that Mr. Hernandez and Mr. Alvarez-Hilario would qualify as travelling employees. Why then did the State Board, the Superior Court and, in this decision, the Court of Appeals decide that the injuries to one and the death of the other were NOT compensable? The distinction lies in the facts as set forth above. These gentelmen would drive from Savannah to Columbus each Monday morning and go straight to work. At the end of their workday, they would retire to the Employer-provided hotel accomodations. By driving to the job site each Monday morning and beginning their workday there, what might have otherwise qualified as "continuous employment" was simply a longer commute and there was no way around the fact that they were "Going TO" work, had not commenced their workday and were not being paid until they arrived at the job site. The Court did take pains to note that "once they had arrived at the job site and begun their duties for the week, barring some deviation for a personal mission wholly foreigh to their employment, the continuious employment doctrine very well might have been applicable..." What factors then were important to consider? 1) These men were NOT being paid for their travel time to and from the job site - they were only "on the clock" when they were at the jobsite. 2) They travelled direct from home to the job site and not to the hotel. One might wonder whether simply driving to the hotel first and then proceeding to the jobsite would have invoked the Continuous employment doctrine. Previous cases have found compensable those injuries which occured between the hotel and the jobsite but all involved a previous overnight stay. In the circumstances of this case, however, when the pay did not begin until they arrived at the jobsite simply "touching base" at the hotel would not seem to be enough.


"Skedsvold & White
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