Sarrazin v. Coastal, Inc. ( 2014 )

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BRIAN SARRAZIN v. COASTAL, INC.
(SC 18877)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and
Espinosa, Js.*
Argued April 18, 2013—officially released April 29, 2014
Leonard A. McDermott, for the appellant (plaintiff).
Steven R. Rolnick, for the appellee (defendant).
Margaret B. Ferron filed a brief for the Connecticut
Employment Lawyers Association as amicus curiae.
Opinion
ESPINOSA, J. This appeal requires us to consider
under what circumstances an employee’s travel time
between home and work constitutes compensable work
time. In this action seeking payment of overtime wages,
the plaintiff, Brian Sarrazin, appeals1 from the judgment
of the trial court awarding him $641.44,2 in accordance
with a stipulated agreement between the plaintiff and
the defendant, Coastal, Inc., and denying his motion for
attorney’s fees. The plaintiff claims that the trial court
improperly concluded that the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq. (FLSA), preempts the relevant
state laws and regulations governing overtime and travel
time. See General Statutes (Supp. 2014) §§ 31-603 and
31-71b;4 General Statutes §§ 31-76b (2) (A)5 and 31-76c;6
Regs., Conn. State Agencies § 31-60-10.7 The plaintiff
further argues that pursuant to § 31-60-10 (b) of the
regulations, which he claims confers greater benefits
than those afforded to employees under the relevant
provision of the FLSA, 29 U.S.C. § 254 (a)8 (also referred
to as the Portal-to-Portal Act of 1947, as amended by
the Employee Commuting Flexibility Act of 1996, Pub.
L. No. 104-188, 110 Stat. 1928 [Portal-to-Portal Act]),9
he is entitled to overtime compensation for his travel
time. In the alternative, the plaintiff claims that the trial
court improperly concluded that his travel time was
not compensable under the Portal-to-Portal Act. Finally,
the plaintiff claims that the trial court improperly denied
his motion seeking attorney’s fees. Because we con-
clude that § 31-60-10 (b) of the regulations, as applied
to the facts of the present case, confers lesser benefits
on employees than those afforded under the FLSA, we
conclude that federal preemption applies, and resolve
the plaintiff’s claim under the Portal-to-Portal Act, pur-
suant to which we conclude that the plaintiff is not
entitled to compensation for his commuting time.
Accordingly, we affirm the judgment of the trial court
in favor of the plaintiff. We also affirm the decision of
the trial court denying the plaintiff’s motion for attor-
ney’s fees.
The record reveals the following relevant facts, some
of which are undisputed, others as found by the trial
court, and procedural history. The defendant, a plumb-
ing subcontractor engaged in the installation and repair
of plumbing systems in large construction projects
throughout the state, handles, sells and works with
goods that move in interstate commerce and has annual
gross sales in excess of $500,000. In September, 2004,
the plaintiff began working for the defendant as a
plumber. At all relevant times, the plaintiff’s work hours
were from 7 a.m. until 3:30 p.m., with one-half hour for
lunch, five days a week, for a total of forty hours per
week. Each day the plaintiff traveled directly from his
home to the location of his current job assignment,
which changed periodically. The complaint alleged that
the plaintiff’s commute to the various job sites was
approximately one hour each way for a total of two
hours travel time each day, in excess of his regular
forty hours per week.
After laying off the plaintiff in June, 2005, the defen-
dant rehired him in February, 2006, and then promoted
him to plumbing foreman in March, 2006. The plaintiff’s
promotion came with a pay raise of $1 per hour and
the use of a company pickup truck for commuting to the
various job sites. Although the plaintiff was expected to
arrange during business hours for regular service and
maintenance of the truck, the defendant paid for all
gasoline, maintenance and repairs. As foreman, the
plaintiff was required to keep some of the defendant’s
equipment and tools in the truck so that he could bring
them back and forth from his home to the job sites.
Additionally, the defendant occasionally directed the
plaintiff to pick up tools and equipment from the defen-
dant’s warehouse at the end of the workday, after regu-
lar work hours, for use at the job site on the next day.
The plaintiff drove the pickup truck until May, 2006,
when the truck was totaled in an accident. For the next
eight to nine months, the plaintiff drove his own truck
to work, and the defendant paid him an extra $50 per
week, until the defendant provided the plaintiff with a
company van for commuting purposes, which he used
for one year and two months until the defendant
demoted him in March, 2008.10 The plaintiff alleged that
while he was foreman, when he arrived home after
work each day, he spent one-half hour cleaning the
company vehicle—or his own truck, during the period
following the accident—and organizing the tools for
the next day.
The plaintiff brought this action, seeking payment of
overtime wages for: (1) the daily commute between his
home and the job sites; (2) the one-half hour that he
claimed he spent cleaning the vehicle and organizing
the tools after he arrived home each day; and (3) the
occasional trips he made to the defendant’s warehouse
to pick up tools and equipment.11 The plaintiff claimed
that the defendant’s failure to pay him the claimed
wages violated General Statutes §§ 31-60, 31-71b, and
31-76c, and § 31-60-10 (b) of the regulations. The parties
agreed to bifurcate the issues of liability and damages.
Following the trial on liability, the court issued a memo-
randum of decision finding that the defendant was liable
only for payment of overtime compensation in connec-
tion with the plaintiff’s claim that he made occasional
trips to the defendant’s warehouse to pick up tools and
equipment. With respect to that claim, the court found
that the testimony established that the defendant had
required the plaintiff to take such trips before or after
his regular work hours on at least some occasions. The
court accordingly held that the plaintiff was entitled to
recover for the number of such trips that he could
prove occurred.
As to the remaining two claims, the court resolved
the plaintiff’s claim for compensation in connection
with the alleged one-half hour each day he spent clean-
ing the company vehicle and organizing the tools on
the basis of its factual findings to the contrary.12 Regard-
ing the plaintiff’s claim for compensation in connection
with his daily two hours of travel time, the court first
concluded that the FLSA preempted applicable state
laws, then applied the Portal-to-Portal Act to evaluate
the plaintiff’s claim.13 In the course of its analysis, the
court made the following additional findings. The plain-
tiff was employed as a plumbing foreman, not a driver.
The use of the company vehicle for commuting—pursu-
ant to an oral agreement between the plaintiff and the
defendant—was ‘‘one of the benefits of being a fore-
man,’’ and the requirement that he carry tools in the
vehicle was merely incidental to his use of it for com-
muting. Finally, the court found that the distance that
the plaintiff traveled from home to the various job sites
was within the normal commuting area for the defen-
dant’s business. On the basis of these factual findings,
the court concluded that the plaintiff had failed to prove
that he was entitled to overtime wages for his commut-
ing time pursuant to the Portal-to-Portal Act.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court, which dismissed the
appeal sua sponte for lack of a final judgment, on the
basis that the court had not yet ruled on damages. On
remand, the trial court rendered judgment awarding the
plaintiff $641.44 in overtime wages for his occasional
trips to the defendant’s warehouse; see footnote 2 of
this opinion; and denying the plaintiff’s motion for attor-
ney’s fees. This appeal followed.
The plaintiff claims that the trial court improperly
concluded that the FLSA preempts Connecticut statutes
and regulations governing overtime wages and travel
time, and improperly applied federal principles to con-
clude that he was not entitled to overtime compensation
for his travel time. Specifically, the plaintiff relies on
an interpretation of § 31-60-10 of the regulations by
the Connecticut Department of Labor (department) to
argue that § 31-60-10 (b) confers greater benefits on
employees than does the Portal-to-Portal Act. There-
fore, the plaintiff argues, the FLSA’s savings clause; 29
U.S.C. § 21814 (savings clause); dictates that state law
governs his claim, under which he is entitled to overtime
compensation for his travel time. The defendant
responds that the FLSA preempts applicable state laws
because the savings clause covers only minimum wage
and overtime laws, not travel time laws, and, in the
alternative, because the applicable state laws are not
more beneficial to employees than the FLSA. Because
we conclude that § 31-60-10 (b) of the regulations, as
applied to the facts of the present case, confers lesser
benefits to employees than the FLSA does, we conclude
that state law is preempted. Applying the Portal-to-Por-
tal Act to the plaintiff’s claim, we conclude that the
trial court properly concluded that the plaintiff was not
entitled to compensation for his travel time.
I
SCOPE OF THE FLSA PREEMPTION
We first consider whether the FLSA, specifically the
provisions of the Portal-to-Portal Act, preempts our
state laws governing travel time and overtime. ‘‘Under
the Supremacy Clause of the United States Constitution,
state laws that conflict with federal law are without
effect . . . and are preempted. The purpose of Con-
gress is the ultimate touchstone in every [preemption]
case . . . and we start with the assumption that the
historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.’’ (Citations omitted;
internal quotation marks omitted.) New York State Res-
taurant Assn. v. Board of Health, 556 F.3d 114, 123 (2d
Cir. 2009). ‘‘Congressional intent primarily is discerned
from the language of the preemption statute and the
statutory framework surrounding it. . . . There are
three types of preemption: (1) express preemption,
where Congress has expressly preempted local law;
(2) field preemption, where Congress has legislated so
comprehensively that federal law occupies an entire
field of regulation and leaves no room for state law;
and (3) conflict preemption, where local law conflicts
with federal law such that it is impossible for a party
to comply with both or the local law is an obstacle
to the achievement of federal objectives.’’ (Citations
omitted; internal quotation marks omitted.) Sosnowy
v. A. Perri Farms, Inc., 764 F. Supp. 2d 457, 463
(E.D.N.Y. 2011).
‘‘By their nature, field preemption and conflict pre-
emption are usually found based on implied manifesta-
tions of congressional intent. . . . Conflict preemption
exists when compliance with both state and federal
law is impossible, and a subset of conflict preemption
referred to as obstacle preemption applies when the
state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of
Congress. . . . State law is in irreconcilable conflict
with federal law, and hence preempted by federal law,
when compliance with the state statute would frustrate
the purposes of the federal scheme.’’ (Citations omitted;
internal quotation marks omitted.) Id., 463–64. Put
another way, state law conflicts with federal law when
‘‘compliance with both federal and state regulations is a
physical impossibility . . . .’’ Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142–43, 83 S. Ct.
1210, 10 L. Ed. 2d 248 (1963).
No provision in the FLSA expressly preempts state
law. Additionally, we previously have observed that it
is clear that Congress did not intend that the FLSA
occupy the field. See Davenport Taxi, Inc. v. State
Labor Commissioner, 164 Conn. 233, 236–37, 319 A.2d
386 (1973) (‘‘The history of the legislation leaves no
doubt that Congress chose not to enter areas it might
have occupied . . . . This necessarily means that there
is a remaining area which is the subject for appropriate
state regulation.’’ [Citation omitted; internal quotation
marks omitted.]). The FLSA, therefore, preempts only
state law that is in ‘‘irreconcilable conflict’’ with federal
law. Sosnowy v. A. Perri Farms, Inc., supra, 764 F.
Supp. 2d 464. This conclusion is consistent with the
savings clause of the FLSA, which expressly provides
in relevant part that ‘‘[n]o provision of this chapter or
of any order thereunder shall excuse noncompliance
with any . . . State law or municipal ordinance estab-
lishing a minimum wage higher than the minimum wage
established under this chapter or a maximum work
week lower than the maximum workweek established
under this chapter . . . .’’ 29 U.S.C. § 218 (a). Courts
have interpreted the savings clause to set the FLSA as
a national floor with which state law must comply.
That is, state laws that provide less protection than
guaranteed under the FLSA are in irreconcilable conflict
with it and are preempted; state laws that provide the
same or greater protection than that provided by the
FLSA are consistent with the federal statutory scheme
and are thus not preempted. See, e.g., Overnite Trans-
portation Co. v. Tianti, 926 F.2d 220, 222 (2d Cir.)
(observing that ‘‘every Circuit [Court of Appeals] that
has considered the issue has reached the same conclu-
sion—state overtime wage law is not preempted by
. . . the FLSA’’), cert. denied, 502 U.S. 856, 112 S. Ct.
170, 116 L. Ed. 2d 133 (1991); Rogers v. Richmond, 851
F. Supp. 2d 983, 985, 986 (E.D. Va. 2012) (no preemption
of ‘‘potentially more generous provisions’’ of state law
because state and federal law can—and must—‘‘operate
in tandem’’).
The defendant urges us to adopt a narrow interpreta-
tion of the savings clause that would restrict its scope
to laws that directly concern overtime and the minimum
wage. Specifically, the defendant observes that the sav-
ings clause expressly ‘‘save[s]’’ only state laws ‘‘estab-
lishing a minimum wage higher than the minimum wage
established under this chapter or a maximum work
week lower than the maximum workweek established
under this chapter . . . .’’ 29 U.S.C. § 218 (a). Relying
on that language, the defendant argues that the FLSA
preempts all relevant state laws except those that either
establish higher minimum wages or mandate lower
maximum workweeks. Section 31-60-10 (b) of the regu-
lations, the defendant claims, does not fit either cate-
gory, and instead governs travel time, not overtime or
the minimum wage. The trial court appears to have
applied this same reasoning to conclude that the savings
clause does not cover state travel time laws.
For two reasons, we disagree with this narrow inter-
pretation of the savings clause. First, as we explain in
this opinion, preemption under the FLSA is relatively
narrow in scope, extending only to directly conflicting
laws. Second, the defendant’s argument assumes that
laws governing travel time compensability are easily
separable from overtime and minimum wage laws. By
contrast, the United States Supreme Court recognized
the interwoven nature of compensability and overtime
and minimum wage laws in Tennessee Coal, Iron &
Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590,
64 S. Ct. 698, 88 L. Ed. 949 (1944), observing that before
it could determine whether miners were entitled to
recover overtime wages for the time spent traveling
underground to the work site, ‘‘[i]t is vital, of course,
to determine first the extent of the actual workweek.
Only after this is done can the minimum wage and
maximum hour requirements of the [FLSA] be effec-
tively applied.’’ Id., 598; see also Spoerle v. Kraft Foods
Global, Inc., 614 F.3d 427, 429 (7th Cir. 2010) (holding
that savings clause applies to laws governing compensa-
bility of donning and doffing time, and observing that
it was undisputed that if state law provided more gener-
ous minimum wage, preemption would not apply; ‘‘if
this is so for the hourly rate, it must be equally so for
the number of hours, because how much pay a worker
receives depends on the number of hours multiplied by
the hourly rate . . . [and] [i]t would be senseless to
say that a state may control the multiplicand but not
the multiplier, or the reverse, because control of either
one permits the state to determine the bottom line [pro-
vided that the state’s number exceeds the federal mini-
mum . . .]’’), cert. denied, U.S. , 131 S. Ct. 933,
178 L. Ed. 2d 753 (2011).
Similarly, in the present case, the compensability of
the plaintiff’s travel time is inextricably linked to his
entitlement to overtime. Like donning and doffing laws,
travel time laws dictate what type of activities are com-
pensable and an employee’s entitlement to overtime
depends on that determination. Accordingly, the sav-
ings clause applies.
II
PREEMPTION ANALYSIS
The question of whether the FLSA preempts the appli-
cable state laws in the present case, accordingly,
requires us to compare the relevant federal and state
provisions to determine whether our state laws meet
the national floor. Preemption applies only if our state
overtime laws and related travel time regulations are
less generous to employees than the FLSA. Regarding
overtime compensation, 29 U.S.C. § 207 (a) (1) provides
in relevant part that ‘‘no employer shall employ any
. . . [employee] . . . for a workweek longer than forty
hours unless such employee receives compensation for
his employment in excess of the hours above specified
at a rate not less than one and one-half times the regular
rate at which he is employed.’’ The corresponding state
statute, § 31-76c, is indistinguishable from 29 U.S.C.
§ 207 (a) (1), and provides in relevant part: ‘‘No
employer . . . shall employ any of his employees for
a workweek longer than forty hours, unless such
employee receives remuneration for his employment in
excess of the hours above specified at a rate not less
than one and one-half times the regular rate at which
he is employed.’’ General Statutes § 31-76c. Obviously,
therefore, 29 U.S.C. § 207 (a) (1) does not preempt
§ 31-76c.
Our inquiry does not end there. For purposes of
determining whether the plaintiff is entitled to overtime
wages, his travel time counts toward his total weekly
work hours only if that time is compensable. Accord-
ingly, we must consider the relative rights available to
employees under the federal and state laws and regula-
tions governing the compensability of travel time,
namely, the Portal-to-Portal Act and § 31-60-10 of the
regulations.
We begin with the national ‘‘floor’’ set by the Portal-
to-Portal Act, which establishes a general rule that com-
muting time, as well as activities that are preliminary
and postliminary to the employee’s principal work activ-
ity, are not compensable. Specifically, the Portal-to-
Portal Act provides that ‘‘walking, riding, or traveling
to and from the actual place of performance of the
principal activity or activities which such employee is
employed to perform’’; 29 U.S.C. § 254 (a) (1); as well
as ‘‘activities which are preliminary to or postliminary
to said principal activity or activities, which occur either
prior to the time on any particular workday at which
such employee commences, or subsequent to the time
on any particular workday at which he ceases, such
principal activity or activities,’’ are not compensable.
29 U.S.C. § 254 (a) (2); see footnote 8 of this opinion.
Additionally, the final sentence of 29 U.S.C. § 254 (a),
which was added by the Employee Commuting Flexibil-
ity Act of 1996, addresses the impact of an employee’s
use of a company vehicle for commuting, providing:
‘‘For purposes of this subsection, the use of an employ-
er’s vehicle for travel by an employee and activities
performed by an employee which are incidental to the
use of such vehicle for commuting shall not be consid-
ered part of the employee’s principal activities if the
use of such vehicle for travel is within the normal com-
muting area for the employer’s business or establish-
ment and the use of the employer’s vehicle is subject
to an agreement on the part of the employer and the
employee or representative of such employee.’’ 29
U.S.C. § 254 (a); see footnote 8 of this opinion.
Decisions interpreting the Portal-to-Portal Act have
carved out an exception to the general rule that travel
time is not compensable. Courts have emphasized that
the employee bears the burden of demonstrating that
his or her travel time is compensable, and that compen-
sability turns on the question of whether the employee’s
travel time constitutes ‘‘work.’’ Adams v. United States,
471 F.3d 1321, 1325–26 (Fed. Cir. 2006), cert. denied,
552 U.S. 1096, 128 S. Ct. 866, 169 L. Ed. 2d 723 (2008). To
determine whether travel time constitutes compensable
‘‘work’’ under the Portal-to-Portal Act, courts consider
whether the employee’s commuting time is integral and
indispensable to the principal work activity; Steiner v.
Mitchell, 350 U.S. 247, 256, 76 S. Ct. 330, 100 L. Ed. 267
(1956); an inquiry that is undertaken by assessing the
relative benefits gained by the employer and the bur-
dens imposed on the employee by an employer’s
demands or restrictions on the employee’s travel time.
Tennessee Coal, Iron & Railroad Co. v. Muscoda Local
No. 123, supra, 321 U.S. 598–99. Put another way, courts
consider whether the ‘‘time is spent predominantly for
the employer’s benefit or for the employee’s [which] is
a question dependent upon all the circumstances of the
case.’’ (Internal quotation marks omitted.) Singh v. New
York, 524 F.3d 361, 367 (2d Cir. 2008). To answer that
question, courts examine the degree to which an
employer’s demands alter the employee’s use of com-
muting time, or, ‘‘hinder the employees’ ability to use
their commuting time as they otherwise would have
had there been no work-related restrictions.’’ Id., 369.
If that burden is minimal, the employer cannot be said
to be the predominant beneficiary of the travel time,
and the time is not compensable.
For example, in Singh, the court held that the plain-
tiffs, who worked as fire alarm inspectors for the city
of New York (city) and were required to ‘‘carry and
keep safe inspection documents during their com-
mutes,’’ were not entitled to compensation for their
travel time. Id., 364. The plaintiffs, who used public
transportation to commute from home to the inspection
sites, claimed that the requirement to carry the brief-
cases full of documents, which weighed between fifteen
and twenty pounds, affected their commute and thus
rendered their travel time compensable.15 Id., 365. The
plaintiffs argued that the burdens on their commute
were significant—the weight of the briefcases slowed
down their walk to the subway station, occasionally
causing them to miss a bus or train; on other occasions,
because of the bulk of the materials they carried, they
were forced to select a circuitous route in order to take
a train with fewer passengers; and the requirement to
keep the documents safe sometimes compelled them
to decline invitations to social functions that occurred
immediately after work. Id.
The key question before the court was whether the
requirement that the plaintiffs carry the briefcases dur-
ing their commute was integral and indispensable to
the plaintiffs’ principal work activity. Id., 367. In order to
answer that question, the court turned to a predominant
benefit analysis, observing that the relative benefit to
the employer often turns on the extent of the burden
placed on the employee. Id., 368. Reasoning that the
requirement to carry the briefcases placed ‘‘only a mini-
mal burden on the inspectors, permitting them freely
to use their commuting time as they otherwise would
have without the briefcase’’; id.; the court held that the
plaintiffs’ commute was not transformed into work time
by the requirement. Id., 369. The city, therefore, was
not the predominant beneficiary of the commuting time.
Id., 368–69.
The Second Circuit Court of Appeals best explained
the connection between the benefit received by the
employer and the degree to which the activity is integral
and indispensable to the employee’s principal work
activity in Reich v. New York City Transit Authority,
45 F.3d 646, 650 (2d Cir. 1995), observing: ‘‘The more
the preliminary (or postliminary) activity is undertaken
for the employer’s benefit, the more indispensable it is
to the primary goal of the employee’s work, and the
less choice the employee has in the matter, the more
likely such work will be found to be compensable.’’ We
read this language to mean that employer demands and
restrictions on preliminary and postliminary activities,
including commuting time, must be understood on a
sliding scale—at a certain point, when the benefits
received by the employer and the burdens imposed on
the employee are substantial, the time no longer can
be viewed as belonging to the employee, and the time
becomes compensable.16
Reich v. New York City Transit Authority, supra, 45
F.3d 646, in which police department canine handlers
sought compensation for their commuting time, illus-
trates this sliding scale approach. The court specifically
rejected the contention that because the obligation to
care for the dogs could arise at any time during the
commute, the entire commute was compensable. Under
that rule, the court reasoned, the handlers would be
entitled to be compensated on a twenty-four hour basis,
because those obligations could arise even while the
handlers slept. Id., 651. Feeding, training and walking
the dogs were part of the principal work activity, and
those activities were primarily for the benefit of the
employer, but those obligations did not dominate the
commuting time. Id., 650–52. The court explained that
‘‘[w]hile there are occasions where dogs need to be
walked or restrained, or the car requires cleaning, dur-
ing the major part of commuting time no work is
required. The handler merely drives with the dog in the
back seat. The mere presence of a dog does not make
the commute compensable.’’17 Id., 652.
When, as in the present case, the employee’s travel
time involves the use of the employer’s vehicle, 29
U.S.C. § 254 (a) provides that the use of the vehicle ‘‘for
travel by an employee and activities performed by an
employee which are incidental to the use of such vehicle
for commuting shall not be considered part of the
employee’s principal activities if the use of such vehicle
for travel is within the normal commuting area for the
employer’s business or establishment and the use of
the employer’s vehicle is subject to an agreement on
the part of the employer and the employee or represen-
tative of such employee.’’ See footnote 8 of this opinion.
To the extent that an employee claims that travel time
is compensable due to the use of an employer’s vehicle,
the employee must demonstrate that the travel was
outside the normal commuting area and that the use
of the vehicle was not subject to an agreement. For
purposes of determining whether an agreement exists,
courts have held that the agreement need not be in
writing; it may be based on a mutual understanding of
company practices; Adams v. United States, 65 Fed.
Cl. 217, 225 (2005), aff’d, 471 F.3d 1321 (Fed. Cir. 2006),
cert. denied, 552 U.S. 1096, 128 S. Ct. 866, 169 L. Ed.
2d 723 (2008); and it may be a condition of employment.
Rutti v. Lojack Corp., 596 F.3d 1046, 1052 (9th Cir.
2010).
In summary, under the Portal-to-Portal Act, an
employee seeking compensation for commuting time
must demonstrate that the requirements and restric-
tions that the employer has placed on that time have
imposed more than a minimal burden on him, trans-
forming that time to an integral and indispensable part
of the principal activity for which the worker is
employed, undertaken predominantly for the benefit of
the employer. The balancing of benefits and burdens
is on a continuum, and the more that the employer’s
requirements burden the employee, preventing the
employee from using that commuting time as he other-
wise would have, the more likely a court will conclude
that the time is for the predominant benefit of the
employer. Even if some or all of the travel time is for
the predominant benefit of the employer, that activity
will still be noncompensable if the amount of time
involved is de minimis. Finally, to the extent that a
claim for compensable travel time is predicated on the
use of an employer’s vehicle for commuting purposes,
the employee must demonstrate that the commute was
outside the normal commuting area and was not the
subject of an agreement between the parties.
We next turn to the applicable state law provisions
to determine whether state law confers at least the
same benefits to employees as guaranteed under the
Portal-to-Portal Act. Because, as we explain in this sec-
tion, we conclude that, as applied to the facts of the
present case, state law confers lesser benefits to
employees than provided under the Portal-to-Portal Act,
federal preemption applies and the Portal-to-Portal Act
governs the plaintiff’s claim for compensation for his
travel time.
The question of whether § 31-60-10 of the regulations
affords equal, lesser or more generous benefits to
employees than provided under the FLSA presents a
question of statutory interpretation, over which we have
plenary review. ‘‘Administrative regulations have the
full force and effect of statutory law and are interpreted
using the same process as statutory construction,
namely, under the well established principles of General
Statutes § 1-2z.’’ (Internal quotation marks omitted.)
Alexandre v. Commissioner of Revenue Services, 300
Conn. 566, 578, 22 A.3d 518 (2011). ‘‘When construing
a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
[Section] 1-2z directs this court to first consider the
text of the statute and its relationship to other statutes
to determine its meaning. If, after such consideration,
the meaning is plain and unambiguous and does not
yield absurd or unworkable results, we shall not con-
sider extratextual evidence of the meaning of the stat-
ute. General Statutes § 1-2z; see also Saunders v. Firtel,
293 Conn. 515, 525, 978 A.2d 487 (2009). Only if we
determine that the statute is not plain and unambiguous
or yields absurd or unworkable results may we consider
extratextual evidence of its meaning such as the legisla-
tive history and circumstances surrounding its enact-
ment . . . the legislative policy it was designed to
implement . . . its relationship to existing legislation
and common law principles governing the same general
subject matter . . . . The test to determine ambiguity
is whether the statute, when read in context, is suscepti-
ble to more than one reasonable interpretation.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) Tine v. Zoning Board of Appeals, 308
Conn. 300, 305–306, 63 A.3d 910 (2013).
Section 31-60-10 (a) of the regulations defines
‘‘ ‘travel time’ ’’ to mean ‘‘that time during which a
worker is required or permitted to travel for purposes
incidental to the performance of his employment but
does not include time spent in traveling from home to
his usual place of employment or return to home, except
as hereinafter provided in this regulation.’’ We first
observe that subsection (a) of § 31-60-10 defines travel
time generally, and does not confine its definition to
compensable travel time. It follows, therefore, that not
all travel time is compensable travel time. The rules for
determining the compensability of travel time are set
forth in the remaining three subsections of § 31-60-10,
and the definition of travel time set forth in subsection
(a) must be read into those subsections. We also
observe that an employee’s time spent traveling from
home to his usual place of employment, and from the
usual place of employment to home, to which we refer
in this opinion as an employee’s regular commute, is
not travel time at all, either compensable or noncom-
pensable, except as provided in § 31-60-10 of the regu-
lations.
Subsections (c) and (d) of § 31-60-10 of the regula-
tions identify the exceptions to the exclusion of an
employee’s regular commute from the concept of travel
time. Both subsections address the compensability of
an employee’s travel between home and a location other
than the usual place of employment: subsection (c)
considers such travel at the beginning of the workday,
dealing with travel from home to a place other than the
usual place of employment, and subsection (d)
addresses travel at the end of the workday, dealing
with travel from a place other than the usual place
of employment to home. Specifically, subsection (c)
provides: ‘‘When an employee is required to report to
other than his usual place of employment at the begin-
ning of his work day, if such an assignment involves
travel time on the part of the employee in excess of
that ordinarily required to travel from his home to his
usual place of employment, such additional travel time
shall be considered to be working time and shall be
paid for as such.’’ Regs., Conn. State Agencies § 31-10-
60 (c). Subsection (d) provides: ‘‘When at the end of a
work day a work assignment at other than his usual
place of employment involves, on the part of the
employee, travel time in excess of that ordinarily
required to travel from his usual place of employment
to his home, such additional travel time shall be consid-
ered to be working time and shall be paid for as such.’’
Id., § 31-60-10 (d).
Both subsections (c) and (d) of § 31-60-10 of the regu-
lations treat an employee’s regular commute as travel
time for the limited purpose of calculating the portion
of the employee’s total travel time that is compensable
under each of these subsections. For example, subsec-
tion (c) of § 31-60-10 provides that ‘‘if such an assign-
ment involves travel time on the part of the employee
in excess of that ordinarily required to travel from his
home to his usual place of employment, such additional
travel time shall be considered to be working time and
shall be paid for as such.’’ (Emphasis added.) In this
sentence, the pronoun ‘‘that’’ (which refers to an
employee’s regular commute) refers back to the term
‘‘travel time,’’ indicating that the employee’s regular
commute is considered ‘‘travel time’’ for purposes of
the subsection. The phrase ‘‘additional travel time’’ in
subsection (c) refers to the difference between the
employee’s regular commute and the travel from home
to a location other than the usual place of employment.
There are thus three categories of travel time contem-
plated by subsection (c): the employee’s regular com-
mute, the commute from home to a location other than
the usual place of employment, and the difference
between those two commutes, when that difference
results in ‘‘additional travel time.’’ Although all three
categories are treated as ‘‘travel time,’’ only the ‘‘addi-
tional travel time’’ is compensable travel time. Subsec-
tion (d) of § 31-60-10 is structured in a similar manner,
treating the employee’s regular commute as travel time
for the limited purpose of determining whether a com-
mute from a place other than the usual place of employ-
ment to home involves ‘‘additional’’ travel time that is
therefore compensable. Essentially, both subsections
(c) and (d) involve arithmetic. Compensable travel time
equals the difference between an employee’s regular
commute and the travel time between home and the
location other than the usual place of employment.
Accordingly, although both subsections (c) and (d) treat
an employee’s regular commute as ‘‘travel time,’’ neither
subsection provides for any compensation for an
employee’s regular commute.
Subsection (b) of § 31-60-10 of the regulations, in
contrast to subsections (c) and (d), does not provide
for an exception to the exclusion in subsection (a), of
an employee’s regular commute from the concept of
travel time. Instead, subsection (b) identifies a general
rule for determining when ‘‘travel time’’ will constitute
‘‘working time’’ and thus be compensable. Specifically,
subsection (b) provides in relevant part that, if ‘‘in the
course of his employment, [the employee] is required
or permitted to travel for purposes which inure to the
benefit of the employer, such travel time shall be con-
sidered to be working time and shall be paid for as
such. . . .’’ (Emphasis added.) Id., § 31-60-10 (b). The
use in subsection (b) of the phrase ‘‘travel time,’’ which
is defined in the immediately preceding subsection,
without any reference to an exception to the general
exclusion of an employee’s regular commute from the
term ‘‘travel time,’’ indicates that subsection (b) is con-
fined to ‘‘travel time’’ as defined in subsection (a). That
is, subsection (b) does not treat an employee’s regular
commute as travel time at all, either compensable or
noncompensable. Subsection (b), therefore, provides
for no compensation for an employee’s regular
commute.
In summary, pursuant to the plain language of § 31-
60-10 of the regulations, we conclude that the regulation
provides for no compensation for an employee’s regular
commute. Because the FLSA does allow for compensa-
tion for an employee’s regular commute under certain
circumstances, preemption applies and the Portal-to-
Portal Act governs the plaintiff’s claim.18
Moreover, we are unpersuaded by the plaintiff’s argu-
ment that the department’s interpretation of § 31-60-10
of the regulations governs our analysis and leads to the
conclusion that state law confers greater benefits on
employees than those afforded under federal law. The
plaintiff relies on an interpretation by the department
of § 31-60-10 of the regulations, in a subsection to its
guide to wage laws in Connecticut, entitled ‘‘Travel
Time Requirements.’’ Connecticut Department of
Labor, ‘‘A Guide to Wage and Workplace Standards
Division and Its Laws’’ (Rev. 2009), p. 41 (guidebook).
The guidebook refers to an April 3, 1995 opinion letter
of the United States Department of Labor, Employment
Standards Administration, Wage and Hour Division
(Department of Labor), setting forth the federal rules
governing travel time compensability for commuting
in an employer-provided vehicle (1995 opinion letter).
Although the department does not expressly state the
source of the federal rules governing travel time com-
pensability, that source is the Portal-to-Portal Act of
1947. The department reads § 31-60-10 of the regulations
to incorporate the same standards that the 1995 opinion
letter read into the Portal-to-Portal Act of 1947. Specifi-
cally, the department interprets § 31-60-10 of the regula-
tions to mean that the travel time of an employee who
uses a company vehicle to commute from home to the
job site is not compensable ‘‘if all of the [four] following
conditions are met: [1] The vehicle in question must
be one that would normally be used for commuting.
Automobiles, pickup trucks, and vans would clearly
fall into this category, even if they carry company or
personal tools. Vehicles that would not fall into this
category are larger trucks (for instance, aerial bucket
trucks, cranes, dump trucks, concrete trucks, etc.) and
other specialized-use vehicles. [2] The employee incurs
no cost for driving or parking the employer’s vehicle
at his or her home. [3] The work sites must be within
normal commuting distance from the employer’s estab-
lishment. For instance, an employee who parks a com-
pany vehicle at his or her home then drives 100 miles
to the first stop of the day is clearly traveling farther
than normal commuting distance. That employee must
be paid from the time [he or she] left home, not from
the time [he or she] reached [his or her] first stop. [4]
Most importantly, the employee who takes a vehicle
home must do so voluntarily. Taking the vehicle home
under orders from the employer or as a condition of
employment means that the employee must be paid for
all travel time to and from [his or her] home.’’ (Emphasis
altered.) Id. The guidebook further provides that even
if all four of the conditions are met, an employee still
may be entitled to compensation if he can demonstrate
that ‘‘the employer derives some considerable benefit
from an employee having the vehicle parked at [his or
her] home.’’ Id.
This court frequently has stated ‘‘that the traditional
deference accorded to an agency’s interpretation of a
statutory term is unwarranted when the construction
of a statute . . . has not previously been subjected to
judicial scrutiny [or to] . . . a governmental agency’s
time-tested interpretation . . . . Consequently, an
agency’s interpretation of a statute is accorded defer-
ence when the agency’s interpretation has been for-
mally articulated and applied for an extended period
of time, and that interpretation is reasonable.’’ (Internal
quotation marks omitted.) Velez v. Commissioner of
Labor, 306 Conn. 475, 484–85, 50 A.3d 869 (2012); accord
Connecticut Motor Cars v. Commissioner of Motor
Vehicles, 300 Conn. 617, 622, 15 A.3d 1063 (2011);
Longley v. State Employees Retirement Commission,
284 Conn. 149, 166, 931 A.2d 890 (2007). These princi-
ples apply as equally to regulations as they do to stat-
utes. See, e.g., Wood v. Zoning Board of Appeals, 258
Conn. 691, 698–99, 784 A.2d 354 (2001); Fullerton v.
Dept. of Revenue Services, 245 Conn. 601, 608, 714 A.2d
1203 (1998); Real Estate Listing Service, Inc. v. Real
Estate Commission, 179 Conn. 128, 138–39, 425 A.2d
581 (1979). Thus, we invoke the exercise of plenary
review over questions of statutory or regulatory inter-
pretation if an agency’s interpretation has not been
formally articulated and time-tested by the agency or
previously considered by the courts.19 The requirements
that an interpretation be ‘‘formally articulated and
applied for an extended period of time’’ provide a proper
basis for deference because, like judicial review, they
ensure that the interpretation is articulated through
procedures that allow for robust adversarial testing and
in a manner that has general applicability. Longley v.
State Employees Retirement Commission, supra, 164;
see also General Statutes § 4-166 et seq. (setting forth
procedures under Uniform Administrative Procedure
Act that agencies must follow to adopt regulations or
issue declaratory rulings).
The department’s interpretation of § 31-60-10 of the
regulations was not promulgated pursuant to any formal
rule-making procedures or articulated pursuant to any
adjudicatory procedures, has not been time-tested20 or
subject to judicial review in this state. See Hasselt v.
Lufthansa German Airlines, 262 Conn. 416, 432, 815
A.2d 94 (2003) (declining to accord substantial defer-
ence to statement of policy, not adopted pursuant to
formal rule-making or adjudicatory procedures, made
by chairman of Worker’s Compensation Commission
because it had been neither time-tested nor subject to
judicial review).
Additionally, the history of the 1995 opinion letter on
which the department relies for its interpretation calls
into question the reasonableness of that interpretation.
Specifically, on August 5, 1994, the Department of Labor
had issued an opinion letter ruling that all travel time
between work and home in an employer-provided vehi-
cle was compensable. H.R. Rep. No. 104-585, 104th
Cong., 2d Sess., p. 2 (1996). ‘‘In response to numerous
letters from Members of Congress expressing concern
and opposition to the Department of Labor’s position’’;
H.R. Rep. No. 104-585, supra, p. 3; which would have
required a reversal of years of industry practice, the
Department of Labor issued the 1995 opinion letter,
which rescinded the 1994 opinion letter and stated its
revised opinion, on which the department relied to
interpret § 31-60-10 of the regulations.
Congress was not satisfied with the 1995 opinion
letter for two reasons. First, although not as extreme
as the position that the Department of Labor had taken
in 1994, its position in 1995 still set a high bar for
employers to meet in order for an employee’s use of a
company car to be noncompensable. Id. Second, the
issuing of two opinion letters on the same subject over
such a short time period revealed a lack of clarity in
the existing law. Id., p. 4. Accordingly, Congress passed
the Employee Commuting Flexibility Act of 1996, which
amended 29 U.S.C. § 254 (a) to provide that when an
employee uses an employer’s vehicle to commute, that
travel time—as well as any activities that are incidental
to the use of the vehicle for travel—is not compensable
as long as the travel is within the normal commuting
area for the employer’s business and the use of the
vehicle is subject to an agreement between the
employer and the employee or the employee’s represen-
tative. 29 U.S.C. § 254 (a); H.R. Rep. No. 104-585, supra,
pp. 4–5. This legislative history reveals that the position
now apparently embraced by the department was
emphatically and expressly rejected by Congress in
1996, yet the department’s guidebook inexplicably fails
to acknowledge the questionable history of the 1995
opinion letter or offer any explanation as to why the
department nonetheless relies on an interpretation
superseded by congressional action to interpret § 31-
60-10 of the regulations. Accordingly, because the
department’s interpretation is not time-tested, reason-
able or the result of formal rule-making procedures, we
accord it no deference.
III
COMPENSABILITY OF THE PLAINTIFF’S
TRAVEL TIME
Accordingly, we now evaluate the plaintiff’s claim
under the Portal-to-Portal Act. The plaintiff, who bears
the burden to demonstrate that his travel time is com-
pensable; Adams v. United States, supra, 471 F.3d 1326;
was required to prove that the requirements and restric-
tions that the defendant placed on his travel time,
namely, carrying the defendant’s tools and equipment
in the back of the defendant’s vehicle, imposed more
than a minimal burden on him, transforming that time
into an integral and indispensable part of the principal
activity for which the plaintiff was employed, under-
taken predominantly for the benefit of the defendant.
To the extent that the plaintiff’s claim for compensation
is predicated on the use of the defendant’s vehicle,
the plaintiff must demonstrate that his commute was
outside the normal commuting area and was not the
subject of an agreement between the parties.
The trial court’s factual findings conclusively resolve
this claim in the defendant’s favor. As to the question
of whether the defendant was the predominant benefi-
ciary of the plaintiff’s travel time, the court found that
the principal activity for which the plaintiff was
employed was to work as a foreman on a construction
site, that the requirement that the plaintiff transport
the tools during his commute was incidental to the
commute itself and that the provision of the vehicle was
a benefit to the plaintiff that came with his promotion to
foreman. The court’s finding that the plaintiff benefited
from using the defendant’s vehicle for commuting pur-
poses, while not dispositive, supports the conclusion
that on the sliding scale of benefits and burdens, the
court concluded that the plaintiff rather than the defen-
dant was the predominant beneficiary of the arrange-
ment. Consistent with that conclusion is the court’s
finding that the transportation of the tools and equip-
ment was incidental to the plaintiff’s commute, there-
fore imposing at most a minimal burden on the plaintiff.
The court, in fact, made no finding that the plaintiff
was in any way inconvenienced by the requirement that
he transport the equipment and tools or that the plaintiff
was compelled to alter his behavior during his commute
in any way as a result of the requirement. Relevant to
that conclusion, the court found that the vehicles in
question were a pickup truck and a van, vehicles nor-
mally used for commuting. The court also found that
it was undisputed that the defendant paid all costs asso-
ciated with both vehicles, including gas, regular mainte-
nance and repairs. As to the presence of tools in the
back of the vehicle, that cannot be said to impose even
as much of a burden on the plaintiff’s commute as that
imposed on the briefcase-toting plaintiffs in Singh v.
New York, supra, 524 F.3d 368. The plaintiff’s transpor-
tation of the defendant’s equipment and tools in the
defendant’s vehicle may be likened to the majority of
the commute of the dog handlers in Reich v. New York
City Transit Authority, supra, 45 F.3d 652. Like a dog
that is behaving quietly in the backseat, the mere pres-
ence of equipment and tools in the back of the defen-
dant’s pickup truck or van does not transform the
plaintiff’s commute into an integral and indispensable
part of the activity for which the plaintiff was employed.
Finally, to the extent that the plaintiff’s claim for com-
pensation is predicated on his use of the defendant’s
vehicle for commuting, the court’s factual findings com-
pel the conclusion that this fact did not render the
plaintiff’s commute compensable. Specifically, the
court found that the work sites were within the normal
commuting area for the defendant’s business, and that
the use of the vehicle was subject to an agreement
between the plaintiff and the defendant. Accordingly,
the trial court properly concluded that the plaintiff was
not entitled to compensation for his commuting time.
IV
ATTORNEY’S FEES
Finally, we address the plaintiff’s claim that the trial
court improperly denied his motion for attorney’s fees
pursuant to General Statutes § 31-72, which provides
that in an action to recover unpaid wages, a prevailing
plaintiff is entitled to recover ‘‘such reasonable attor-
ney’s fees as may be allowed by the court . . . .’’ The
court based its denial of fees on its finding that no
evidence had been presented at trial that the defen-
dant’s actions were in bad faith, arbitrary or unreason-
able. The plaintiff argues that the court abused its
discretion in denying the fees because he was the pre-
vailing party, at least insofar as he recovered unpaid
wages for the occasional trips to the warehouse to pick
up equipment and tools, and because the defendant’s
actions in failing to pay him for his travel time were
wilful. Because the defendant wilfully failed to pay him
overtime wages, the plaintiff argues, the defendant
acted in bad faith.
‘‘[I]t is well established . . . that it is appropriate
for a plaintiff to recover attorney’s fees, and double
damages under [§ 31-72], only when the trial court has
found that the defendant acted with bad faith, arbitrari-
ness or unreasonableness.’’ (Internal quotation marks
omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265
Conn. 210, 269, 828 A.2d 64 (2003). In the present case,
the trial court specifically found that there was no evi-
dence of bad faith, arbitrariness or unreasonableness.
Without that additional factual finding, even if we
agreed with the plaintiff that he is the prevailing party—
which we need not decide—the trial court properly
denied his motion for attorney’s fees.
The judgment is affirmed.
In this opinion ROGERS, C. J., and NORCOTT,
ZARELLA and EVELEIGH, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
The stipulated agreement between the parties actually provides that the
defendant and the plaintiff agree that the plaintiff is entitled to recover
$691.44. The record does not reveal any explanation for the discrepancy
between the amount specified in the stipulated agreement and the amount
that the trial court awarded pursuant to that agreement.
3
General Statutes (Supp. 2014) § 31-60 provides in relevant part: ‘‘(a) Any
employer who pays or agrees to pay to an employee less than the minimum
fair wage or overtime wage shall be deemed in violation of the provisions
of this part.
‘‘(b) The Labor Commissioner shall adopt such regulations, in accordance
with the provisions of chapter 54, as may be appropriate to carry out the
purposes of this part. Such regulations may include, but are not limited to,
regulations defining and governing an executive, administrative or profes-
sional employee and outside salesperson; learners and apprentices, their
number, proportion and length of service; and piece rates in relation to time
rates; and shall recognize, as part of the minimum fair wage, gratuities in
an amount (1) equal to twenty-nine and three-tenths per cent, and effective
January 1, 2009, equal to thirty-one per cent of the minimum fair wage per
hour, and effective January 1, 2014, equal to thirty-four and six-tenths per
cent of the minimum fair wage per hour, and effective January 1, 2015, equal
to thirty-six and eight-tenths per cent of the minimum fair wage per hour
for persons, other than bartenders, who are employed in the hotel and
restaurant industry, including a hotel restaurant, who customarily and regu-
larly receive gratuities, (2) equal to eight and two-tenths per cent, and
effective January 1, 2009, equal to eleven per cent of the minimum fair wage
per hour, and effective January 1, 2014, equal to fifteen and six-tenths per
cent of the minimum fair wage per hour, and effective January 1, 2015, equal
to eighteen and one-half per cent of the minimum wage per hour for persons
employed as bartenders who customarily and regularly receive gratuities,
and (3) not to exceed thirty-five cents per hour in any other industry, and
shall also recognize deductions and allowances for the value of board, in
the amount of eighty-five cents for a full meal and forty-five cents for a
light meal, lodging, apparel or other items or services supplied by the
employer; and other special conditions or circumstances which may be
usual in a particular employer-employee relationship. The commissioner
may provide, in such regulations, modifications of the minimum fair wage
herein established for learners and apprentices; persons under the age of
eighteen years; and for such special cases or classes of cases as the commis-
sioner finds appropriate to prevent curtailment of employment opportuni-
ties, avoid undue hardship and safeguard the minimum fair wage herein
established. Regulations in effect on July 1, 1973, providing for a board
deduction and allowance in an amount differing from that provided in this
section shall be construed to be amended consistent with this section. . . .’’
Although § 31-60 has been amended by the legislature several times since
the events underlying the present case; see, e.g., Public Acts 2013, No. 13-
117, § 2; those amendments have no bearing on the merits of this appeal.
In the interest of simplicity, we refer to the 2014 supplement of the statute.
4
General Statutes (Supp. 2014) § 31-71b provides in relevant part: ‘‘(a)
(1) Except as provided in subdivision (2) of this subsection, each employer,
or the agent or representative of an employer, shall pay weekly all moneys
due each employee on a regular pay day, designated in advance by the
employer, in cash, by negotiable checks or, upon an employee’s written
request, by credit to such employee’s account in any bank that has agreed
with the employer to accept such wage deposits. . . .’’
Although § 31-71b has been amended by the legislature several times since
the events underlying the present case; see, e.g., Public Acts 2011, No. 11-
61; those amendments have no bearing on the merits of this appeal. In the
interest of simplicity, we refer to the 2014 supplement of the statute.
5
General Statutes § 31-76b (2) (A) defines ‘‘ ‘[h]ours worked’ ’’ to ‘‘include
all time during which an employee is required by the employer to be on the
employer’s premises or to be on duty, or to be at the prescribed work place,
and all time during which an employee is employed or permitted to work,
whether or not required to do so, provided time allowed for meals shall be
excluded unless the employee is required or permitted to work. Such time
includes, but shall not be limited to, the time when an employee is required
to wait on the premises while no work is provided by the employer.’’
6
General Statutes § 31-76c provides: ‘‘No employer, except as otherwise
provided herein, shall employ any of his employees for a workweek longer
than forty hours, unless such employee receives remuneration for his
employment in excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is employed.’’
7
Section 31-60-10 of the Regulations of Connecticut State Agencies pro-
vides: ‘‘(a) For the purpose of this regulation, ‘travel time’ means that time
during which a worker is required or permitted to travel for purposes inciden-
tal to the performance of his employment but does not include time spent
in traveling from home to his usual place of employment or return to home,
except as hereinafter provided in this regulation.
‘‘(b) When an employee, in the course of his employment, is required or
permitted to travel for purposes which inure to the benefit of the employer,
such travel time shall be considered to be working time and shall be paid
for as such. Expenses directly incidental to and resulting from such travel
shall be paid for by the employer when payment made by the employee
would bring the employee’s earnings below the minimum fair wage.
‘‘(c) When an employee is required to report to other than his usual place
of employment at the beginning of his work day, if such an assignment
involves travel time on the part of the employee in excess of that ordinarily
required to travel from his home to his usual place of employment, such
additional travel time shall be considered to be working time and shall be
paid for as such.
‘‘(d) When at the end of a work day a work assignment at other than his
usual place of employment involves, on the part of the employee, travel
time in excess of that ordinarily required to travel from his usual place of
employment to his home, such additional travel time shall be considered
to be working time and shall be paid for as such.’’
8
Title 29 of the United States Code, § 254 (a), provides in relevant part:
‘‘Activities not compensable . . .
‘‘(1) walking, riding, or traveling to and from the actual place of perfor-
mance of the principal activity or activities which such employee is employed
to perform, and
‘‘(2) activities which are preliminary to or postliminary to said principal
activity or activities,
‘‘which occur either prior to the time on any particular workday at which
such employee commences, or subsequent to the time on any particular
workday at which he ceases, such principal activity or activities. For pur-
poses of this subsection, the use of an employer’s vehicle for travel by an
employee and activities performed by an employee which are incidental to
the use of such vehicle for commuting shall not be considered part of the
employee’s principal activities if the use of such vehicle for travel is within
the normal commuting area for the employer’s business or establishment
and the use of the employer’s vehicle is subject to an agreement on the part
of the employer and the employee or representative of such employee.’’
9
By way of background, Congress enacted the Portal-to-Portal Act of
1947 in response to initial, broad judicial interpretations of the FLSA that
had found employer liability for a variety of preliminary and postliminary
activities, thus creating ‘‘wholly unexpected liabilities.’’ (Internal quotation
marks omitted.) Bobo v. United States, 37 Fed. Cl. 690, 692 n.3 (1997), aff’d,
136 F.3d 1465 (Fed. Cir. 1998). The Portal-to-Portal Act of 1947, accordingly,
narrowed the coverage of the FLSA by excluding liability for most commut-
ing time and preliminary and postliminary activities. Adams v. United States,
65 Fed. Cl. 217, 221 (2005), aff’d, 471 F.3d 1321 (Fed. Cir. 2006), cert. denied,
552 U.S. 1096, 128 S. Ct. 866, 169 L. Ed. 2d 723 (2008). The Employee
Commuting Flexibility Act of 1996 further limited employer liability by
amending the Portal-to-Portal Act of 1947 ‘‘to clarify that otherwise non-
compensable commuting to work is not compensable merely because the
employee uses his employer’s vehicle.’’ United Transportation Union Local
1745 v. Albuquerque, 178 F.3d 1109, 1117 (10th Cir. 1999).
10
Count two of the amended complaint brought claims for retaliation for
filing this action and constructive discharge, based on the plaintiff’s demo-
tion and his subsequent assignment to job sites farther from home. The
plaintiff subsequently withdrew count two.
11
The trial court noted that the complaint did not allege a claim in connec-
tion with the occasional trips to the warehouse, but because the plaintiff’s
evidence on the claim was admitted without objection, the court consid-
ered it.
12
Contrary to the plaintiff’s testimony that he was required to perform
this task at home, after regular work hours, the trial court found that the
defendant provided the plaintiff time during regular hours at the job site to
do the cleaning and organizing. He was regularly given five minutes, but if
more time was required, the defendant allowed it. The trial court also found
that the plaintiff had exaggerated the time required to keep the vehicle
clean, and that, in fact, the defendant expected him to keep the vehicle only
as presentable as he would his own vehicle. In light of these factual findings,
the plaintiff would be unable to prevail on his claim for overtime wages in
connection with this claim. Accordingly, we do not address the plaintiff’s
claim that he is entitled to compensation for his alleged postliminary work
cleaning the company vehicle.
We further observe that, without expressly claiming that the trial court’s
factual findings were clearly erroneous, the plaintiff questions a number of
those findings on appeal, including the court’s finding that the defendant
did not require him to clean the vehicle after work hours. The plaintiff
claims in his brief that the trial court ‘‘ignore[d] the evidence in front of it,’’
and that its findings were ‘‘erroneous’’ and contrary to what had been
established by a preponderance of the evidence. To the extent that the
plaintiff’s brief may be interpreted to claim that the court’s factual findings
were clearly erroneous, we disagree. Under that standard, we overturn a
finding of fact only ‘‘when there is no evidence in the record to support it
. . . or when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’’ (Internal quotation marks omitted.) Naples
v. Keystone Building & Development Corp., 295 Conn. 214, 225, 990 A.2d
326 (2010). Our review reveals that the court’s findings are supported by
the record. The mere fact that the plaintiff can point to evidence that would
support a finding more favorable to him does not render the court’s findings
clearly erroneous.
13
We observe that the plaintiff claims that the trial court improperly
interpreted his claim for compensation for his commuting time to encompass
only the time during which he drove the defendant’s vehicles. He claims
that he also sought compensation for his commuting time during the time
period when he used his own vehicle to commute, on the basis that he was
carrying the defendant’s tools and equipment in the vehicle. The trial court’s
memorandum of decision does indeed characterize the plaintiff’s claim as
relating ‘‘to the time when he was driving a company vehicle . . . .’’ The
court accordingly limited its legal analysis of the defendant’s liability to the
question of whether the plaintiff was entitled to compensation for the time
he spent commuting in the defendant’s vehicle, and did not make an indepen-
dent determination regarding any entitlement to compensation that the
plaintiff may have had for the time he spent commuting in his own vehicle.
Although the plaintiff did not seek an articulation or reconsideration on
this basis, the trial court’s factual findings preclude a conclusion that the
plaintiff is entitled to compensation for his commuting time in his own
vehicle. As we explain in part III of this opinion, those findings support the
conclusion that the plaintiff, rather than the defendant, was the predominant
beneficiary of his commuting time.
14
Title 29 of the United States Code, § 218, provides in relevant part:
‘‘(a) No provision of this chapter or of any order thereunder shall excuse
noncompliance with any Federal or State law or municipal ordinance estab-
lishing a minimum wage higher than the minimum wage established under
this chapter or a maximum work week lower than the maximum workweek
established under this chapter . . . .’’
15
The plaintiffs received compensation for all travel time between inspec-
tion sites. Singh v. New York, supra, 524 F.3d 367 n.3.
16
An additional hurdle facing an employee seeking recovery for travel
time under the Portal-to-Portal Act is that, in order for an employee to be
entitled to payment for the time, the amount of compensable time must not
be de minimis. The de minimis doctrine has its roots in Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 692, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946),
in which the court observed: ‘‘When the matter in issue concerns only a
few seconds or minutes of work beyond the scheduled working hours, such
trifles may be disregarded. Split-second absurdities are not justified by the
actualities of working conditions or by the policy of the [FLSA]. It is only
when an employee is required to give up a substantial measure of his
time and effort that compensable working time is involved.’’ Applying that
principle, courts consider the following three factors in determining whether
otherwise compensable travel time involves de minimis, and therefore non-
compensable, amounts of time: ‘‘(1) the practical administrative difficulty
of recording the additional time; (2) the aggregate amount of compensable
time; and (3) the regularity of the additional work.’’ Lindow v. United States,
738 F.2d 1057, 1063 (9th Cir. 1984).
17
Although the court concluded that the actual time that the handlers
spent providing care to the dogs during the commute constituted work, the
court also concluded that the time spent providing care was de minimis
and therefore not compensable. Reich v. New York City Transit Authority,
supra, 45 F.3d 652; see footnote 16 of this opinion.
18
We emphasize that our conclusion that the FLSA preempts § 31-60-10
(b) of the regulations is necessarily limited to the facts of the present case.
Our decision should not be read to conclude that the FLSA preempts § 31-
60-10 (b) of the regulations in every instance. There may be factual circum-
stances under which § 31-60-10 (b) provides for greater benefits to employees
than that allowed under the FLSA—the question of what those facts may
be, however, simply is not before us in this appeal.
Moreover, although § 31-60-10 of the regulations as we have interpreted
it is effectively limited to employee claims for compensation on the basis
of the mere act of travel, we observe that nothing in § 31-60-10 of the
regulations prohibits an employee who performs work that, by coincidence,
occurs during the employee’s regular commute, from receiving compensa-
tion pursuant to § 31-76b (2) (A). See footnote 5 of this opinion. Specifically,
because General Statutes § 31-76b (2) (A) defines ‘‘ ‘[h]ours worked’ ’’ to
include, inter alia, ‘‘time during which an employee is required by the
employer . . . to be on duty . . . and all time during which an employee
is employed or permitted to work,’’ we can conceive of factual circumstances
under which an employee may be performing a compensable service for
his employer at the same time that he is commuting. For example, if an
employer telephones an employee during the employee’s regular commute
to work and engages the employee in a discussion that concerns work-
related issues, the employee would be entitled to compensation for the time
involved in the telephone call, if under the particular facts of the case, the
conversation constituted ‘‘work’’ that the employee was permitted to do.
The mere fact that the ‘‘work’’ happened to coincide with the employee’s
regular commute would not render the time noncompensable. Under such
circumstances, the employee would not be seeking compensation for the
regular commute per se, but rather for the services rendered to the employer
during the commute.
It is beyond the scope of this appeal to determine under what circum-
stances an employee’s actions during his commute would constitute compen-
sable work pursuant to § 31-76b (2) (A). The plaintiff’s commute, however,
clearly does not rise to the level of compensable work under the statute.
Instead, the plaintiff’s claim properly is governed by § 31-60-10 (b) of the
regulations, because he seeks compensation for the mere act of traveling,
on the basis that at the time that he was engaged in his regular commute,
the defendant’s tools were in the back of the vehicle.
19
Although this court has accorded deference to an agency’s reasonable
interpretation of its own regulation; see MacDermid, Inc. v. Dept. of Envi-
ronmental Protection, 257 Conn. 128, 138–39, 778 A.2d 7 (2001); such defer-
ence is only afforded to an interpretation that has been adopted pursuant
to formal rule-making or adjudicatory procedures. See, e.g., Velez v. Commis-
sioner of Labor, supra, 306 Conn. 487–88 (according deference to Commis-
sioner of Labor’s decision in formal administrative proceeding); MacDermid,
Inc. v. Dept. of Environmental Protection, supra, 129–30, 139–40 (according
deference to declaratory ruling of Commissioner of Environmental Protec-
tion); Starr v. Commissioner of Environmental Protection, 226 Conn. 358,
370–71, 627 A.2d 1296 (1993) (according deference to Commissioner of
Environmental Protection administrative action). Similarly, our recognition
of the principle that, ‘‘in certain circumstances, the legislature’s failure to
make changes to a long-standing agency interpretation implies its acquies-
cence to the agency’s construction of the statute’’; Longley v. State Employ-
ees Retirement Commission, supra, 284 Conn. 164; assumes that the
interpretation has been adopted in a manner that would garner the legisla-
ture’s attention.
20
A consideration of whether an interpretation is time-tested takes into
account both the length of time since it first was articulated and the number
of formal decisions applying that interpretation. See Stec v. Raymark Indus-
tries, Inc., 299 Conn. 346, 357, 10 A.3d 1 (2010) (noting board’s numerous
decisions over period of thirty years constitutes time-tested interpretation);
Dept. of Public Safety v. State Board of Labor Relations, 296 Conn. 594,
600, 996 A.2d 729 (2010) (noting agency interpretation was not time-tested
when agency only had applied interpretation twice and interpretation had
not been subject to judicial review); Connecticut Assn. of Not-For-Profit
Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 390 n.18,
709 A.2d 1116 (1998) (noting ‘‘[f]our years hardly constitutes a time-tested
agency interpretation’’ [internal quotation marks omitted]).