February 26, 2008

When play becomes work, or the case of the traveling employee

There are various circumstances in which an injury that occurs during a recreational activity might be compensable. One exception might be if the injury occurs on company premises or at a company-sponsored event, a likelihood that approaches near certainty if participation in the event was mandatory. Another common exception is in the case of traveling employees. When employees are engaged in business travel on behalf of their employer, compensable activities may encompass a variety of activities that would likely not be compensable for a "fixed place" employee. For the purpose of workers compensation, a traveling employee is generally considered to be working continuously during the business trip unless a special deviation from business can be determined. Daily life and personal comfort activities that would not be covered at home are generally considered work: eating, sleeping, and traveling, for example, as well as some recreational activities.

Roberto Ceniceros of Business Insurance has a brief write-up of a judgment by Washington's Supreme Court that offers an excellent illustration of the traveling employee doctrine at work. Alfred Giovanelli was a skilled firebrick mason who regularly traveled the country to rebuild and fix furnaces for Saint-Gobain Corporation (formerly Ball-Foster Glass Container Company). During one assignment at one of the company's plants in Seattle, he was injured on his day off. He was headed to a park with his supervisor to investigate a concert, but on crossing the street in front of his hotel, he was struck by a vehicle and grievously injured. He applied for and was granted workers compensation. His employer continued to appeal on the basis that the Giovanelli was engaged in a recreational activity that had no business purpose. The appeal wended its way through the various strata of the court until the matter reached the Supreme Court where compensability was upheld. In his article, Ceniceros notes:

The doctrine--also known as the "commercial traveler rule" or the "continuous coverage rule" -- generally states that a traveling employee is considered to be in the course of employment during his or her entire trip, except for "a distinct departure on a personal errand," court records show.

The case document - Ball Foster Glass Container Company v. Alfred Giovanelli and the Department of Labor and Industries in the State of Washington - is worth a read. It's pretty plain-spoken and it illustrates various principles that generally apply to workers compensation. It offers a brief history of how workers comp evolved, and the adoption of the British Compensation Act's formula of an injury "arising out of and in the course of employment" - nine not-so-simple words that have spawned innumerable court challenges. The document discusses this phrase in this context and moves on to discussing the matter of whether Giovanelli fit the definition of a "traveling employee" (yes) and the meat of the case, whether Giovanelli had "left the course of employment" when he was injured. In its discussion, the court referenced a few cases when compensability for recreational activities was denied:

Although distinguishing between reasonable personal ministrations and purely personal amusement ventures may be difficult, courts have had little difficulty denying compensation for unusual or unreasonable activities. See, e.g., E. Airlines v. Rigdon, 543 So. 2d 822 (Fla. Dist. Ct. App. 1989) (denying compensation for employee injured during skiing trip at resort over 50 miles from hotel); Buczynski, 934 P.2d 1169 (hot tub injury occurring in hotel 150 miles away from convention center and days before convention not compensable).

The employer argued that Giovanelli's activity was a deviation and that crossing a thoroughfare without the right of way was an "inherently dangerous" activity. The Court disagreed, citing the personal comfort doctrine, and finding that negotiating unfamiliar streets is one of the typical risks that a traveling employee faces. In the discussion of personal comfort, the Court stated:

The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment. A traveling employee is entitled to broader coverage than a nontraveling employee because a traveling employee is in a significantly different position of risk than a nontraveling employee. The nontraveling employee may satisfy his personal needs without leaving the comfort of home. In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise.
In evaluating this particular activity, the Court found that Giovanelli's crossing the street did not represent a significant deviation from the course of employment.

For further discussion on these matters, see Jim Pocius' excellent discussion of Workers Compensation and Course of Employment. He looks at the issues of course of employment, fixed place versus traveling employees, and scope of employment. He also offers excellent advice to employers on how to minimize risk:

  • Make social events voluntary. An employer should not make attendance at a social event mandatory. The less control that an employer exerts over social events, the less chance there will be that an injury during a softball game, volleyball game, basketball game, etc., will be considered within the course of employment.
  • Enforce work rules. If the employer has a valid set of work rules that are enforced, such employee behavior as fighting, foul language, and wandering to restricted areas of the plant can all be considered activities which would remove the employee from the course of employment.
  • Keep traveling employees to a minimum. There are innumerable cases of traveling employees being hurt while in vehicles, hotels, and restaurants. In order to avoid this liability, traveling employees should be kept to a minimum if your business permits.
  • Do not send fixed place employees on special missions unless absolutely necessary. If your employees work at one location, the employer must try to keep casual missions by these employees to a minimum. Thus, sending an employee to obtain a form at a state office building or run other errands increases workers compensation exposure.
  • Investigate all claims. As always, good factual investigation on any questionable course of employment claims will pay dividends during litigation.

| 1 Comment

1 Comment

Personal opinion - I generally agree with broader coverage for traveling employees, including personal missions eating, sleeping, etc. I am however opposed to these employees being considered as covered when a deviation (checking out a concert or buying tickets for same)occurs that does not "further the business interests of the employer". Just an opinion.

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This page contains a single entry by Julie Ferguson published on February 26, 2008 8:14 AM.

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