The Brinks decision which was handed down in October of 2007 has resulted in a wide variety of responses from contractors who furnish company vehicles to nonexempt employees for commuting or other use while not on duty. Some have pulled all vehicles and now require that those vehicles are parked in the company lot at night. Others have settled with individual employees while some have simply begun to pay their employees overtime for commuting in company vehicles. There is no one solution that will fit every company. This list of recommendations is only a starting point and should not be considered legal advice.

1. Review and potentially modify your policies: You are at significant exposure for a Brinks claim if your current vehicle policies place significant restrictions on the actions of your employees while using company vehicles when they are not on duty. There is only one way to “Brinks proof” your policy and that is to pull all trucks. However, that may not be a good idea, especially if you are a union employer since this might be considered a unilateral change in working conditions subject to bargaining. You can make your vehicle policies “Brinks resistant” by removing restrictions on employees’ use of the vehicles for commuting and other personal uses. Even seemingly innocuous policies about using company vehicles while off duty, like obeying traffic laws, keeping the vehicle clean or not using it for errands create a very real risk of establishing Brinks liability.

2. Get rid of the possibility of work during the commute time: Get rid of or significantly reduce the possibility of sending instructions to employees while they are at home or are in transit in company vehicles. This will require coordination between the employee and dispatch so that the employee does not check in with headquarters until after the clock has started or before he or she has clocked out. If there are too many unknowns to completely halt this practice, limit the number of employees who can receive such calls to one or two and pay them for this time.

3. Pay for actual overtime: If you are actually contacting employees with work-related calls or emails while they are at home or during their commuting time, or if you are asking them to make work-related stops along the way during their commute, they are very likely on the clock and entitled to compensation. The easiest way to avoid a claim for unpaid overtime is to pay it up front (or else stop all calls and other work related activities until the employee is actually on the clock).

4. For past liability, consider settlement: The real concern for most contractors is what to do about the accumulated potential liability over the past three years. It may be a good idea, depending on your circumstances, to consider paying a settlement amount to those employees that commute in company vehicles. For union contractors, this may require that you negotiate with the union rather than directly with employees. If you decide that settlement is an appropriate solution for your business, it is important that your settlement language clearly state that there is a bona fide dispute over whether the Brinks decision even applies to your situation. Should you choose to settle with your employees, it would be a good idea to consult your attorney. Remember also that settlement does nothing about future liability and only addresses liability already accumulated.

5. Consult your attorney: Every situation is unique. Unless you are Brinks, and you have a program called the “Home Dispatch Program,” there is no guarantee that your employees are, or are not, entitled to compensation for their commutes. Therefore it is highly advisable to seek the advice of an attorney who can evaluate your company vehicle policy as it appears in written form and as it is practiced in the field.

6. Contact your insurer: Insurance providers have different ideas about the contents of employers’ vehicle policies regarding use of the fleet by employees. It is important to keep your provider aware of any proposed changes to your policy, so your vehicle insurance is not jeopardized.

7. Consult your accountant: Generally, an employer-furnished vehicle for commuting or other personal use is a taxable benefit to the employee. The IRS requires record keeping of all business and personal use, and reporting (including on the employee's W-2) of personal use. The rate at which personal use is reported and taxed depends upon the size and configuration of the vehicle, as well as on whether the employee uses it for substantial personal use beyond commuting. For a general explanation of the IRS rules click IRS Publication 15-B (2008). Be sure to consult your accountant to be sure your policies meet IRS requirements for record keeping and reporting.

Editor’s Note: The AGC Brinks Task Force consists of a group of attorneys who work with contractors most affected by the new law on the use of company vehicles for commuting. Those attorneys include John Riper and Dan Swedlow of Stanislaw-Ashbaugh, LLP; Judd Lees of Williams Kastner & Gibbs, PLLC; and William Jeffery of the Jeffery Group, PLLC.

For previous AGC Works articles on Brinks, click here and here.