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Don Drysdale, a skilled carpenter, works for Craftsmen Trades and seldom goes to the company office in Mt. Laurel, N.J. He generally spends weeks or even months working at major job sites. On May 1, 2017 he drives his personal vehicle from his home in Cherry Hill, N.J. to a job site in Woodbridge, N.J. where a large commercial building is being constructed. He has been working at that site for a month. As he is driving up the Turnpike, a truck veers into his lane and strikes his vehicle, causing Mr. Drysdale serious injuries. Is he covered for workers’ compensation purposes?
The starting point is to study the language of N.J.S.A. 34:15-36, which states that “employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work . . . provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from the job site.”
This first question to ask is whether this commercial site is the “employer’s place of employment?” The answer to that question is probably no since Craftsmen Trades has an office in Mt. Laurel, N.J. That is the employer’s place of employment. The second question is whether this commute falls under the special mission exception cited above for those trips that are “away from the employer’s place of employment?” The answer to this question is also likely no because this location in Woodbridge would qualify as a job site since Drysdale works there for weeks or months at a time. So we have to consider what the test is for driving to and from a job site.
Based on the statutory language above, Don Drysdale’s drive is only covered if he is using an employer authorized vehicle or if he is paid travel time for the commuting segment of his day. In this case, he is driving his personal vehicle, so he does not meet the “authorized vehicle” exception. But we do not yet know whether he is paid travel time. If not, the commute is not compensable.
One case which is helpful on this issue is Mahon v. Reilly’s Radio Cabs, Inc., 212 N.J. Super. 28 (App. Div. 1986). In that case the injured worker, a New Jersey Transit employee, was traveling on a New Jersey Transit Bus, driven by defendant Cruz, from Hoboken to his place of employment. He paid no fare as he was provided free transportation on all NJ Transit buses as part of his Collective Bargaining Agreement. The bus stopped at a dangerous angle in the street, and when Mahon exited the bus and walked into the street, a cab driven by Cruz struck him causing serious injuries. Mahon sued the cab driver and NJ Transit. NJ Transit argued that petitioner was in the scope of his employment and therefore could not sue his own employer. NJ Transit further contended that Mahon was provided free transportation in an employer authorized vehicle. Both the trial court and the appellate court disagreed with these arguments.
First, the Appellate Division distinguished the “place of employment” from “job site” in the above statute. “In this case before us, the plaintiff’s accident did not occur while he was traveling to a job site away from the employer’s place of employment. Rather, he was injured while on the way to the place of employment.” What this meant is that the language about authorized vehicle and travel time did not apply. Secondly, the Court said that when someone is driving to his or her place of employment, it does not matter if the transportation is cost free to the employee. “That he was provided free transportation on NJT buses as a benefit of his employment, which he could utilize in commuting to work, does not operate to bring this travel within the scope of his employment.” The Court cited to Nebesne v. Crocetti, 194 N.J. Super. 278 (App. Div. 1984) for the proposition that an employer does not render a commute to work compensable just because the employer reimburses all travel expenses.
The analysis workers’ compensation practitioners should make when dealing with commuting issues is this:
1. Was the employee commuting to the employer’s place of employment? If that is the case, the travel is not compensable, including alternate places of employment. So if an employer has an office in Trenton, an office in Parsippany and an office in Harrisburg, PA., and throughout the year the employee has to drive to all three offices, the commute to any of these offices is not compensable because all three locations would qualify as an employer’s place of employment.
2. Was the employee commuting to a job site? If so, this commute is only compensable if the employee was using an authorized company vehicle or paid travel time.
3. Was the employee reporting to a location that is not the employer’s place of employment and not a job site? If so, this commute will likely qualify as a special mission and the commute will be covered because it will be “away” from the employer’s place of employment.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.