H. Rept. 104-585 - 104th Congress (1995-1996)
May 20, 1996, As Reported by the Economic and Educational Committee

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House Report 104-585 - USE OF EMPLOYER VEHICLES




[House Report 104-585]
[From the U.S. Government Printing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-585
_______________________________________________________________________


 
                        USE OF EMPLOYER VEHICLES

                                _______


  May 20, 1996.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


     Mr. Goodling, from the Committee on Economic and Educational 
                 Opportunities, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1227]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Economic and Educational Opportunities, to 
whom was referred the bill (H.R. 1227) to amend the Portal-to-
Portal Act of 1947 relating to the payment of wages to 
employees who use employer owned vehicles, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. PROPER COMPENSATION FOR USE OF EMPLOYER VEHICLES.

    Section 4(a) of the Portal-to-Portal Act of 1947 (29 U.S.C. 254(a)) 
is amended by adding at the end the following: ``for purposes 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 areas for the employer's business or 
establishment of 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.''.

SEC. 2. EFFECTIVE DATE.

    The amendment made by section 1 shall take effect on the date of 
the enactment of this Act and shall apply in determining the 
application of section 4 of the Portal-to-Portal Act of 1947 to an 
employee in any civil action brought before such date of enactment but 
pending on such date.

                                Purpose

    The purpose of H.R. 1227 is to amend the Portal-to-Portal 
Act of 1947 relating to the payment of wages to employees who 
use employer-provided vehicles.

                            Committee Action

    H.R. 1227 was introduced by Representative Harris W. Fawell 
on March 14, 1995. The Subcommittee on Workforce Protections 
held a hearing on H.R. 1227 on November 1, 1995. The witnesses 
who testified at the hearing were: Mr. Jack Herbert, McAllister 
Fuels Service Company, Pennsauken, New Jersey; Mr. Patrick T. 
Jopek, President, Merit Mechanical Systems, Inc., Darien, 
Illinois; and Mr. Manny Maderos, International Brotherhood of 
Electrical Workers.
    On December 13, 1995, the Subcommittee on Workforce 
Protections approved H.R. 1227 by voice vote and ordered the 
bill favorably reported to the Full Committee. On March 21, 
1996, the Committee on Economic and Educational Opportunities 
ordered the bill favorably reported to the House of 
Representatives by voice vote with an Amendment in the Nature 
of a Substitute.

                       Explanation of Amendments

    The Amendment in the Nature of a Substitute which was 
adopted by the Committee on Economic and Educational 
Opportunities on March 21, 1995, is explained in this report.

                     Committee Statement and Views

Background

    On August 5, 1994, the U.S. Department of Labor's Wage and 
Hour Division issued an opinion letter in response to an 
investigation regarding the compensation of travel time for 
employees who travel to and from work in employer-provided 
vehicles.\1\ In the letter, the Department of Labor ruled that 
the time spent by an employee traveling from home to the first 
work assignment, or returning home from the last assignment, 
was similar to that of traveling between jobs during the day 
and therefore represented a principal activity, which must be 
compensated. No compensation would be required in cases where 
employees used their own personal vehicles.
---------------------------------------------------------------------------
    \1\ U.S. Department of Labor, Wage and Hour Division, Opinion 
Letter dated August 5, 1994 (hereinafter ``August 1994 opinion 
letter'').
---------------------------------------------------------------------------
    The policy was based on the Portal-to-Portal Act of 1947 
\2\ which sets forth the requirements for determining whether 
an employee must be compensated for an activity which occurs 
before (``preliminary'') or after (``postliminary'') the 
principal activity for which the employee is employed to 
perform. Examples of these types of activities are: walking, 
riding, or traveling to and from the actual place of the 
performance of work; checking in or out and waiting in line to 
do so; changing clothes; washing up, showering, or bathing; and 
retrieving or returning tools of the trade. Such activities can 
be considered to be part of an employee's principal activities, 
depending on the individual facts of each case. For example, 
miners who must travel substantial distances underground before 
beginning work are more likely to be compensated for travel 
time than are individuals walking from a parking area to the 
factory.
---------------------------------------------------------------------------
    \2\ 29 U.S.C. Sec. 251-262.
---------------------------------------------------------------------------
    The August 1994 opinion letter interfered with what is the 
customary practice in many industries, whereby employees 
commute directly from home to the job site and use of the 
company vehicle for such commuting is a matter of convenience 
for both the employer and the employee. A significant number of 
companies operate programs where employees are allowed to use 
company vehicles for this purpose. As Mr. Jack Herbert 
testified before the Subcommittee on Workforce Protections:

          For many years, servicemen and women have had the use 
        of company vehicles to commute to and from their homes 
        without charge. This practice, while voluntary, is 
        eagerly chosen by virtually all servicemen and women 
        because of its significant benefit to them. This 
        practice is used throughout the oil heat industry and 
        many other service industries.

    In response to numerous letters from Members of Congress 
expressing concern and opposition to the Department of Labor's 
position, the Department of Labor suspended enforcement of the 
August 1994 opinion letter.\3\ The Department of Labor 
subsequently issued a revised opinion letter on April 3, 
1995,\4\ withdrawing the August 1994 opinion letter and 
modifying its position on the issue.
---------------------------------------------------------------------------
    \3\ Letter dated October 19, 1994, from Secretary Robert B. Reich, 
U.S. Department of Labor, to the Honorable William D. Ford, Chairman of 
the Committee on Education and Labor, U.S. House of Representatives.
    \4\ U.S. Department of Labor, Wage and Hour Division, Opinion 
Letter dated April 3, 1995 (hereinafter ``April 1995 opinion letter'').
---------------------------------------------------------------------------
    The April 1995 opinion letter held that time spent 
traveling between the employee's home and the first work site 
of the day and between the last work site of the day and the 
employee's home need not be compensated if: (1) driving the 
employer's vehicle between the employee's home and work sites 
at the start and end of the workday is strictly voluntary and 
not a condition of employment; (2) the vehicle involved is the 
type of vehicle which would normally be used for commuting; (3) 
the employee incurs no costs for driving the employer's vehicle 
or parking it at the employee's home or elsewhere; and (4) the 
work sites are within the normal commuting area of the 
employer's establishment.
    The Committee recognizes that the April 1995 opinion letter 
is a retreat from the policy which was put forth by the 
Department of Labor in the August 1994 opinion letter, yet a 
number of issues remain unclear. The Department of Labor's most 
recent position would allow employers to treat travel from home 
to the first work site and from the last work site to home as 
ordinary, noncompensable commute time. However, in order for an 
employer not to count commute time in a company vehicle as 
compensable, all of the conditions delineated in the April 1995 
opinion letter must be met. Those employers who do not meet 
each of the requirements may be vulnerable to back pay lawsuits 
by both the Department of Labor and employees.
    In addition, the Committee believes that because the 
Department of Labor has, within a short time period, issued two 
different opinions as to how the Portal-to-Portal Act applies 
to this area points to the need for clarifying legislation. 
Indeed, given the Department of Labor's inconsistency, courts 
may give little weight to the Department of Labor's current 
interpretation (see, e.g. Teddy W. Baker, et al., v. GTE North 
Incorporated (No. 3:94-CV-885RM) N.D. Indiana 1996). Thus it is 
important for Congress to clarify the intention of the Portal-
to-Portal Act with regard to employee use of employer-provided 
vehicles for commuting.

Legislation

    H.R. 1227 provides clarification regarding the use of an 
employer-provided vehicle for travel from an employee's home to 
the first work location at the start of the workday and from 
the last work location to the employee's home at the end of the 
workday. Such travel is not considered to be part of the 
employee's principal activities and therefore, the time spent 
in such commuting is not required to be compensated under the 
Fair Labor Standards Act of 1938.\5\ The limitation applies 
only if the use of the vehicle 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 between 
the employer and the employee or employee's representative. 
This clarification regarding an employee's ``principal activity 
or activities'' applies as well to activities performed by an 
employee which are incidental to the use of the employer-
provided vehicle for travel by the employee at the beginning 
and end of the workday.
---------------------------------------------------------------------------
    \5\ 29 U.S.C. Sec. 201-219.
---------------------------------------------------------------------------
    H.R. 1227 does not apply to time spent traveling between 
job sites. H.R. 1227 is an amendment to section 4(a) of the 
Portal-to-Portal Act. Section 4(a) applies only to 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'' the 
principal activity or activities. Thus it is not necessary to 
repeat in H.R. 1227 that the language only applies to travel 
time which occurs at the beginning and end of the workday.
    H.R. 1227 requires that in order for the travel time to be 
considered noncompensable, the use of the vehicle by the 
employee must be conducted under an agreement between the 
employer and employee or the employee's representative. This 
requirement is intended to balance the interests of both the 
employer and the employee while permitting maximum flexibility 
under the law. While H.R. 1227 does not require a written 
agreement, this requirement may be satisfied through a formal 
written agreement between the employee and employer, a 
collective bargaining agreement between the employee's 
representative and the employer, or an understanding based on 
established industry or company practices.
    The April 1995 opinion letter establishes a requirement 
that in order for an employee's travel time to be considered 
noncompensable, the work sites must be located within the 
normal commuting area of the employer's establishment. The same 
test is used in H.R. 1227. Some have suggested that there 
should be a specific mileage limit, such as 30 miles. There are 
a variety of problems in trying to establish a specific mileage 
limit. Differences between urban, suburban and rural locations 
make a relationship between the distance traveled and the time 
involved impossible. Employees may reside outside of the 
service area where they are employed and employers may or may 
not maintain a physical establishment in the area.
    H.R. 1227 limits noncompensable travel to travel between 
the employee's home and work sites within the normal commuting 
area of the employer's establishment or service area. This 
language is intended to recognize the differences that exist 
between geographic regions, industries, etc. that cannot be 
easily defined. H.R. 1227 is not intended to address travel 
outside the normal commuting area.
    Activities which are merely incidental to the use of an 
employer-provided vehicle for commuting at the beginning and 
end of the workday are similarly not considered part of the 
employee's principal activity or activities and therefore need 
not be compensable. It is not possible to define in all 
circumstances what specific tasks and activities would be 
considered ``incidental'' to the use of an employer's vehicle 
for commuting. Communication between the employee and employer 
to receive assignments or instructions, or to transmit advice 
on work progress or completion, is required in order for these 
programs to exist. Likewise, routine vehicle safety inspections 
or other minor tasks have long been considered preliminary or 
postliminary activities and are therefore not compensable. 
Merely transporting tools or supplies should not change the 
noncompensable nature of the travel. The Committee expects that 
the Department of Labor will provide guidance in this area, 
consistent with the purposes of H.R. 1227.
    It is important to address two issues which are not 
specifically covered by H.R. 1227 but have been raised in 
conjunction with it. The first issue concerns the type of 
vehicle used for commuting. To be considered noncompensable 
travel time, the courts and the Department of Labor have 
generally considered that driving a company vehicle be similar 
to commuting in a private vehicle. The fact that a vehicle may 
have been modified for special purposes, displays company 
logos, or is specially equipped does not alter the nature of 
such travel.
    While H.R. 1227 does not specifically address this issue, 
it is the intent of the Committee that the vehicle should be of 
a type that does not impose substantially greater difficulties 
to operate than the type of vehicle which would normally be 
used for commuting. The fact that the vehicle may have been 
modified to meet the employer's specifications or requirements 
should not be considered a determining factor.
    The second issue concerns cost to the employee for use of 
the employer's vehicle. It is the intent of the Committee that 
the employee incur no out-of-pocket or direct cost for driving, 
parking or otherwise maintaining the employer's vehicle in 
connection with commuting in employer-provided vehicles. 
However, the employer shall not be responsible for unrelated 
expenses, such as an employee's tax liability under the 
provisions of the Internal Revenue Code which may result from 
the employee's personal use of the employer's vehicle or for 
traffic violations resulting from the improper operation of the 
vehicle by the employee.
    Section 2 of H.R. 1227 makes the bill effective upon 
enactment and applicable to civil actions pending on the date 
of enactment, in which a final decision has not been entered. 
It clarifies a provision of the law that has been the subject 
of inconsistent and contradictory interpretations by the 
Department of Labor and the courts. The purpose of H.R. 1227 is 
to clarify the intent of the Portal-to-Portal Act as it applies 
to employee use of employer-provided vehicles for commuting at 
the beginning and end of the workday. It is therefore 
appropriate to apply the clarification to pending cases, as 
well as to future programs established by employers and 
employees. H.R. 1227 addresses a provision of law that has been 
ambiguous and the source of conflicting and contradictory 
interpretations by the Department of Labor. Thus, it is fair 
and reasonable to apply the clarification to pending cases as 
well as to any future situations.

                                Summary

    H.R. 1227, as amended, would amend the Portal-to-Portal Act 
of 1947 to clarify that use of an employer's vehicle for travel 
by an employee and any incidental activities performed by an 
employee which are related to the use of the vehicle for 
commuting shall not be considered to be part of the employee's 
principal activities if: (1) the use of the vehicle is subject 
to an agreement between the employer and the employee or 
representative of such employee; and (2) the vehicle is used 
for travel within the normal commuting area for the employer's 
business or establishment. The legislation would take effect 
upon enactment and would apply to any case in which a final 
judgment has not been entered.

                      Section-by-Section Analysis

Section 1. Proper compensation for use of employer vehicles

    This provision would add language to the end of section 
4(a) of the Portal-to-Portal Act of 1947 to specify that 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 the vehicle for commuting shall not be considered to be 
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 vehicle 
is subject to an agreement between the employer and the 
employee or representative of the employee.

Section 2. Effective date

    This section provides that H.R. 1227 would take effect upon 
the date of enactment and would apply in determining the 
application of section 4 of the Portal-to-Portal Act of 1947 to 
an employee in any civil action brought before or on the date 
of enactment.

                        Explanation of Amendment

    The Amendment in the Nature of a Substitute is explained in 
this report.

                  Oversight Findings of the Committee

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives and clause 2(b)(1) of 
rule X of the Rules of the House of Representatives, the 
Committee's oversight findings and recommendations are 
reflected in the body of this report.

                     Inflationary Impact Statement

    In compliance with clause 2(l)(4) of rule XI of the Rules 
of the House of Representatives, the Committee estimates that 
the enactment into law of H.R. 1227 will have no significant 
inflationary impact on prices and costs in the operation of the 
national economy. It is the judgment of the Committee that the 
inflationary impact of this legislation as a component of the 
federal budget is negligible.

                    Government Reform and Oversight

    With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations form the Committee on Government Reform and 
Oversight on the subject of H.R. 1227.

                           Committee Estimate

    Clause 7 of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs which would be incurred in carrying out 
H.R. 1227. However, clause 7(d) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 403 of the Congressional Budget Act of 1974.

                Application of Law to Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act (CAA), requires a description of the 
application of this bill to the legislative branch. This bill 
amends the Portal to Portal Act of 1947 as it relates to the 
payment of wages to employees who use employer owned vehicles. 
Consistent with Section 225 of the CAA and Section C501.106 of 
the Regulations submitted by the Office of Compliance and 
adopted by the House of Representatives on April 15, 1996, the 
Portal to Portal Act is applicable to the legislative branch in 
that it defines and delimits the rights and protections of the 
Fair Labor Standards Act which is made applicable to the 
legislative branch by the CAA under section 102. Hence, the 
provisions of this bill which amend the Portal to Portal Act 
apply to the legislative branch.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act requires a statement of whether the provisions of 
the reported bill include unfunded mandates. The Committee 
received a letter regarding unfunded mandates from the Director 
of the Congressional Budget Office and has such the Committee 
agrees that the bill does not contain any unfunded mandates. 
See infra.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 2(l)(3)(B) of 
rule XI of the House of Representatives and section 308(a) of 
the Congressional Budget Act of 1974 and with respect to 
requirements of clause 2(l)(3)(C) of rule XI of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for H.R. 1227 from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 3, 1996.
Hon. William F. Goodling,
Chairman, Committee on Economic and Educational Opportunities, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 1227, a bill to amend the Portal-to-Portal Act of 
1947 relating to the payment of wages to employees who use 
employer-owned vehicles, as ordered reported by the Committee 
on Economic and Educational Opportunities on March 21, 1996. 
CBO estimates that enactment of the bill would have no 
significant effect on federal spending. H.R. 1227 contains no 
intergovernmental or private sector mandates as defined in 
Public Law 104-4, and would impose no direct costs on state, 
local, or tribal governments. The bill could in fact save 
federal, state and local governments and private sector 
employers money by reducing payroll liabilities.
    The bill would amend the Portal-to-Portal Act by clarifying 
that incidental commuting time an employee spends in an 
employer-owned vehicle shall not be considered to be part of 
the employee's principal activities, provided that the use of 
the employer's vehicle is subject to an agreement between the 
employer and the employee, and that the travel is within the 
normal commuting area for the employer's business. It would 
reduce potential liability of employers, particularly in the 
state and local government sector.
    Current law does not classify commuting time as a principal 
employment activity. However, some employees argue that because 
a vehicle is employer-owned, commuting time spent in such a 
vehicle should be subject to minimum wage and maximum hour 
requirements. In April 1995, the Wage and Hour Division of the 
Department of Labor retracted an earlier opinion that would 
have required compensation for such commuting time (The earlier 
opinion was not being enforced at the time that it was 
retracted). Consequently, many employers do not factor in 
commuting time when computing a worker's compensation.
    Currently, a number of cases are pending that could affect 
state and local governments whose employees commute in 
government-owned vehicles. If, under current law, the courts 
determine that the time spent commuting in a company vehicle 
and on incidental activities is subject to compensation, state 
and local governments would face additional costs. H.R. 1227 
would eliminate this potential liability.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christi 
Hawley.
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director).

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

             SECTION 4 OF THE PORTAL-TO-PORTAL ACT OF 1947

                                Part III

                             future claims

    Sec. 4. Relief From Certain Future Claims Under the Fair 
Labor Standards Act of 1938, As Amended, the Walsh-Healey Act, 
and the Bacon-Davis Act.--
    (a) Except as provided in subsection (b), no employer shall 
be subject to any liability or punishment under the Fair Labor 
Standards Act, on account of the failure of such employer to 
pay an employee minimum wages, or to pay an employee overtime 
compensation, for or on account of any of the following 
activities of such employee engaged in on or after the date of 
the enactment of this Act--
          (1) 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, and
          (2) activities which are preliminary to or 
        postliminary to said principal activity or activities,
which occur either prior to the time on any particularly 
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 purposes 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.
          * * * * * * *
                             MINORITY VIEWS

    We oppose H.R. 1227, as reported, because it effectively 
eliminates the right of workers to choose how they will commute 
to work, eliminates the ability of workers to exercise 
discretion over what they do while they are commuting, and 
allows employers to require employees to work off the clock, 
without being paid for their services. At a time when 
corporations are making historic profits, while working 
families are seeing their wages decline, the Republican 
Majority is seeking to enact legislation that deprives 
employees of their personal time and hard-earned money.
    The reported bill amends the Fair Labor Standards Act 
(FLSA) to allow employers to require workers to perform work 
without being paid for it. We are struck by the irony that a 
majority of the Republican Members of Congress oppose 
increasing the minimum wage, but, as evidenced by this 
legislation, are perfectly willing to take the time and effort 
to make sure that work does not always pay.
    H.R. 1227, as introduced, was originally described as 
seeking to do no more than codify the Department of Labor's 
April 3, 1995, opinion letter (hereinafter referred to as the 
``April 30 DOL opinion'') which specified when an employee must 
be compensated for commuting in an employer-owned vehicle.
    That letter provided four conditions that must be met if an 
employee is not to be compensated for time commuting between 
home and work in an employer's vehicle:
    The employee must voluntarily choose to use the employer's 
vehicle.
    The employee cannot incur costs as a result of using the 
employer's vehicle.
    The vehicle must be of a type that is normally used for 
commuting.
    The commute must be within normal commuting distance.
    For numerous reasons, H.R. 1227, as reported bears little 
resemblance to the Department of Labor's policy. First, the 
bill permits an employer to compel an employee to agree to use 
the employer's vehicle for commuting purposes, as a condition 
of employment. The Majority asserts that it has been customary 
in many industries for employees to use employer vehicles for 
commuting purposes without being compensated for that time. The 
Majority cites the testimony of Mr. Jack Herbert:

          For many years servicemen and women have had the use 
        of company vehicles to commute to and from their homes 
        without charge. This practice, while voluntary, is 
        eagerly chosen by virtually all servicemen and women 
        because of its significant benefit to them (emphasis 
        added).

    The Majority's choice of quotes is interesting because it 
points out a principal difference between what has been 
customary (truly voluntary employee decisions) and what is 
allowed under H.R. 1227 (compelled use of an employer's 
vehicle). The bill explicitly provides that use of an 
employer's vehicle for commuting purposes is not compensable if 
``the use of the employer's vehicle is subject to an agreement 
on the part of the employer and the employee.'' Further, the 
Majority's views specify that such an agreement need not be in 
writing, but may rest on ``an understanding based on 
established industry or company practice.'' Notably, during 
Committee markup, the Majority specifically rejected an 
unambiguous amendment offered by Representative Andrews (D-NJ) 
providing that such agreement must be knowing and voluntary, 
and may not be required as a condition of employment. The 
Majority chose to leave H.R. 1227 weak on the issue of employee 
voluntariness, preferring to grant employers wide latitude to 
impose, as a condition of employment, non-voluntary and non-
compensable employee use of the employer's vehicle.
    Second, H.R. 1227, as reported, provides that an employee 
may be required to perform any duties ``incidental'' to the use 
of the vehicle without compensation for that time. The Majority 
states in its views,

          Activities which are merely incidental to the use of 
        an employer-provided vehicle . . . are similarly not 
        considered part of the employee's principal activity or 
        activities and therefore need not be compensable. It is 
        not possible to define in all circumstances what 
        specific tasks and activities would be considered 
        ``incidental'' to the use of the employer's vehicle for 
        commuting.

    The Majority goes on to state that activities such as 
``routine vehicle safety inspections or other minor tasks have 
long been considered preliminary or postliminary activities and 
are therefore not compensable'' (emphasis added).
    The Majority's characterization that such activities have 
long been considered ``incidental'' and therefore non-
compensable under current law is simply not true. The Fifth 
Circuit, in Dunlop v. City Elec., Inc., 527 F.2d. 394, 
articulated the parameters between ``incidental'' and 
``principal'' activities:

          . . . Decisions construing the Portal-to-Portal Act 
        in conjunction with the F.L.S.A. [Fair labor Standards 
        Act] make clear that the excepting language of section 
        4 was intended to exclude from F.L.S.A. coverage those 
        activities ``predominantly . . . spent in [the 
        employees'] own interests.'' [Jackson v. Air Reduction 
        Co., 402 F.2d 521, 523 (6th Cir. 1968).] No benefit may 
        inure to the company. [Blum v. Great Lakes Carbon 
        Corp., 418 F.2d 283, 287 (5th Cir. 1969).] The 
        activities must be undertaken ``for [the employees'] 
        own convenience, not being required by the employer and 
        not being necessary for the performance of their duties 
        for the employer.'' [Mitchell v. Southeastern Carbon 
        Paper Co., 228 F.2d 934 (5th Cir. 1955).] The exemption 
        was not intended to relieve employers from liability 
        for ``any work of consequence performed for an 
        employer'' [(Secretary of Labor v. E.R. Field, Inc., 
        495 F.2d 749 (1st Cir. 1974)], from which the company 
        derives ``significant benefit''. [Cherup v. Pittsburgh 
        Plate Glass Company, 350 F. Supp. 386, 391 (N.D. W. Va. 
        1972)].

    In Dunlop, as quoted in Teddy W. Baker, et al., v. GTE 
North Incorporated (the case referenced in the Majority's 
views):

          The Fifth Circuit . . . found that the plaintiff 
        electricians' pre-shift activities, including filling 
        out time, material, and supply and cash requisition 
        sheets, checking job locations, cleaning out and 
        loading their trucks with the necessary materials, 
        fueling the trucks, and picking up the electrical plans 
        for the day's jobs, were ``within the broad range of 
        `principal activities' performed at their employer's 
        behest and for the benefit of the business.'' [Teddy W. 
        Baker, et al., v. GTE North Incorporated, No. 3:94-CV-
        885RM, (N.D. Indiana 1996) at page 13.] (emphasis 
        added).
    Therefore, in light of overwhelming case law establishing 
that the determinative question is who benefits from the 
activities rather than whether the activities are 
``preliminary'' or ``postliminary,'' we are wholly unpersuaded 
by the Majority's assertion about what ``incidental'' means.
    Third, beyond denying employees compensation for services 
for which employers must pay under current law, H.R. 1227, as 
reported, effectively enables employers to transfer to 
employees the costs of maintaining the employer's vehicle. The 
Majority's views state that ``It is the intent of the Committee 
that the employee incur no out-of-pocket or direct cost for 
driving, parking or otherwise maintaining the employer's 
vehicle . . .''. If that is, in fact, the intent of the 
Committee, we question why the Majority did not agree to 
include such a limitation within the plain language of the 
statute. Again, the Republican Majority rejected the Andrews 
amendment which expressly codified the April 3 DOL opinion by 
providing that employees would incur ``no cost for driving, 
parking, or otherwise maintaining such vehicle.''
    Nowhere within the plain language of the legislation is 
there any restriction regarding the assumption of cost of the 
use of the employer's vehicle by the employee. Indeed, assuming 
the ``agreement'' between the employer and the employee (which, 
again, may be imposed as a condition of employment) required 
the employee to assume costs associated with the operation of 
the vehicle, there is no basis within the plain language of the 
legislation for a court to reach any conclusion other than that 
use of the employer's vehicle remains outside of the employee's 
principal activities. Further, the fact that the Committee 
specifically requested an amendment including such a limitation 
is more persuasive legislative history than the legislative 
dicta contained in the Majority's views. Rather than 
``codifying'' the April 3 DOL opinion, the Majority opted to 
muddy matters.
    Fourth, H.R. 1227, as reported, effectively permits an 
employer to require the employee to use any vehicle, from a 
farm tractor to 16-wheel tractor trailer, for commuting 
purposes. The Majority views state that ``it is the intent of 
the Committee that the vehicle should be of a type that does 
not impose substantially greater difficulties to operate than 
the type of vehicle which would normally be used for 
commuting.'' The plain language of H.R. 1227, however, includes 
no limitation whatsoever on what kind of vehicle may be used 
for commuting purposes. The Andrews amendment would have made 
the provision clear by requiring that vehicles used for 
commuting purposes be ``of a type that does not impose 
substantially greater difficulties to drive than the type of 
vehicle that is normally used by employees for commuting.'' The 
Republican Majority rejected that clarification, too.
    H.R. 1227 applies retroactively to pending litigation, 
notwithstanding the fact that the bill bears little 
relationship to the April 3 DOL opinion, or to any other 
previous policy enunciated by the Department of Labor regarding 
the treatment of time spent commuting in an employer-owned 
vehicle. In short, the bill substantially modifies current law 
and intentionally seeks to immunize employers who violated the 
law.
    The original theory behind the exemption for commuting time 
was that an employee who is commuting to and from work is on 
his or her own time. The employee may choose the means by which 
he or she commutes. The employee may chose the route by which 
to go. The employee may perform any errand of his or her choice 
on the way to, or from, work. The employee may pick up and drop 
off passengers as he or she desires. In short, other than being 
required to be at a certain place by a certain time, the 
employee's commuting time has nothing to do with the employer. 
It is the employee's own time to do with as he or she sees fit. 
In such circumstances, regardless of whether the employee is 
using his or her own vehicle or the employer's, the employer 
should not be required to compensate the employee. No one 
contends otherwise.
    Under this legislation, however, it is the employer, and 
not the employee, who can control and manipulate the employee's 
commuting time. Here is the most obvious example of how an 
employee's discretion is compromised: It is extremely common 
for parents to drop off their children at school on the way to 
work. For insurance reasons, however, employers restrict the 
use of their vehicles to ``employees only''; non-employee 
passengers in such vehicles are uniformly prohibited. 
Therefore, an employee who can be required to use an employer's 
vehicle to commute to work, pursuant to this legislation, is 
also effectively prohibited from engaging in the very common 
and often necessary family task of dropping off his or her 
child at school on the way to work.
    No one contends that this legislation confers upon an 
employee the free use of the employer's vehicle. Employers have 
a legitimate interest in regulating the use of their vehicles 
and typically do so. Employees are not generally permitted to 
use the vehicles for personal errands; rather they are 
restricted to using them only to travel to, and from, the job 
site. Employers also regularly and typically restrict the kinds 
of activities an employee may engage in while traveling to and 
from the job site in an employer-owned vehicle. For example, 
under the plan at issue in Teddy W. Baker, et al., v. GTE North 
Incorporated, company rules covering the use of vehicles for 
commuting purposes explicitly stated:

          Vehicles are to be used only for business purposes. 
        No personal use shall be authorized. No rider shall be 
        allowed in the vehicles while traveling. No authorized 
        stops will be allowed while the employees are traveling 
        except for fuel. The employee may stop in route home to 
        purchase milk, bread, cigarettes, etc. [Id. at page 
        17.] (emphasis added.)

    Even though employees were on their own time and were not 
being paid, GTE North required employees to adhere to all 
company rules as if they were being paid and restricted where 
the employees could go, where they could stop, and even 
regulated what they could purchase. Unlike H.R. 1227, however, 
in the GTE plan the employees freely and voluntarily chose to 
use the employer's vehicle and could have used their own 
vehicles to commute to and from work without being subject to 
such restrictions. Employees do not have that option under H.R. 
1227.
    Adding salt to the wound, H.R. 1227 enables employers to 
require employees to perform services for free that employers 
are otherwise required to pay for under current law. The 
employer can require the employee to load the vehicle, to fuel 
the vehicle, to maintain the vehicle, to take job assignments, 
or to perform any other duty ``incidental'' to the commute 
without paying the employee for those services. In any other 
circumstance, an employer is unquestionably required under the 
FLSA to pay the employee for each and all of those services.
    In conclusion, the Republican Majority contends in its 
views that ``it is important for Congress to clarify the 
intention of the Portal-to-Portal Act with regard to employee 
use of employer-provided vehicles for commuting.'' In seeking 
this purported clarity, however, the Majority attributes 
limitations to the legislation that cannot be sustained by a 
facial reading of the legislation. Further, it mischaracterizes 
``incidental'' duties in a manner that bears no relationship to 
the present state of the law. In fact, the Majority views more 
accurately describe the Andrews' amendment, which it rejected, 
than its own reported bill. The inevitable consequence of 
distorting the description of the provisions of the legislation 
is not the clarity that the Majority claims to desire, but 
years of litigation caused by vagueness and ambiguity. The 
plain language of H.R. 1227 and the Majority's views are 
inherently inconsistent, inimical to current case law and 
customary employer practices, and injurious to the ability of 
workers to control their own time.

                                   William L. Clay.
                                   Dale E. Kildee.
                                   Tom Sawyer.
                                   Patsy T. Mink.
                                   Xavier Becerra.
                                   Gene Green.
                                   George Miller.
                                   Pat Williams.
                                   Major R. Owens.
                                   Donald M. Payne.
                                   Chaka Fattah.