                                                                           FILED 

                                                                        JUNE 17,2014 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


JOHN JENSEN, on behalf of himself and         )        No. 31668-8-111
all others similarly situated,                )
                                              )
                     Appellant,               )         UNPUBLISHED OPINION
                                              )
              v.                              )
                                              )
LINCOLN COUNTY, a political                   )

subdivision of the State of Washington,       )

                                              )

                     Respondent.              )



      KORSMO, J.   -John Jensen appeals the dismissal at summary judgment of his claim

for wages while traveling to his varying jobsites throughout the environs of Lincoln

County. We agree with the trial court that the collective bargaining agreement (CBA)

does not compel him to drive from the county seat to the job sites and, therefore, affrnn.


                                          FACTS

      Lincoln County owns and operates a mobile rock crusher. The crusher usually

remains set up in a single location for a few months before the crew moves it to another

site. This location becomes the crew's work premises for the next few months. No
No. 31668-8-III
Jensen v. Lincoln County


matter how far away the crusher is located, the crew's eight hour work day does not

begin until they reach the crusher. The CBA explicitly provides that the eight hour work

day "does not include travel time to and from the work site." Clerk's Papers at 135.

However, the CBA does require the county to furnish the crew with transportation to and

from the work site. The crusher foreman is paid a $150 monthly travel allowance.

       To fulfill the transportation requirement, the county provides the crew with a sport

utility vehicle (SUV). Every morning, Mr. Jensen and other members of the crew start

their day at the county shop to pick up the vehicle. While at the shop, Mr. Jensen and the

other crew members do not perform any required work. According to Mr. Jensen, he

normally visits with the mechanics at the shop and gathers parts for the crusher on an as

needed basis. Once all the crew members are present, they carpool to the current crusher

site. During that commute, the crew members also do not perform any work; instead,

they talk about sports, politics, and other non-work related topics.

       Although the county provides the crew with an SUV, some crew members still

drive their personal vehicles to the crusher site. The county does not have any policies or

rules requiring the crew to use the SUV or to meet at the shop in the mornings.

       The county also does not have any formal policies or rules prescribing how the

crew uses the SUV. Informally, the county prohibits the crew from using the SUV for

personal towing, from consuming alcohol prior to operating the SUV, and from

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No.31668-8-II1
Jensen v. Lincoln County


transporting non-employees. The only formal policy applicable to the vehicle is the CBA

provision for equipment assigned to county employees. It makes the crew members

responsible for the SUV's maintenance, which means that the crew has to notify the

county mechanics when work needs to be done.

      Mr. Jensen sued Lincoln County for the unpaid time spent traveling between the

shop and the crusher site. At that time, he had worked on the crusher crew for

approximately 6 years, and had worked for the county for approximately 14 years. The

parties brought cross-motions for summary judgment on the question of liability. The

superior court granted the county's motion for summary judgment and denied Mr.

Jensen's cross-motion. Mr. Jensen then timely appealed to this court.

                                       ANALYSIS

      This court reviews a summary judgment ruling de novo, performing the same

inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29,34, 1 P.3d 1124

(2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the

light most favorable to the nonmoving party. Id. If there is no genuine issue of material

fact, summary judgment will be granted if the moving party is entitled to judgment as a

matter of law. Id. This court may also determine a question of fact as a matter of law

when reasonable minds can reach only one conclusion. Miller v. Likins, 109 Wn. App.

140, 144,34 P.3d 835 (2001).

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No. 31668-8-111
Jensen v. Lincoln County


       Here, the parties ask us to decide whether the time that Mr. Jensen spends

traveling between the county shop and the crushing site is compensable under

Washington's Minimum Wage Act, chapter 49.46 RCW. The answer to that question

depends on whether that time falls within the meaning of "hours worked" as defined by

the Department of Labor and Industries (DLI). Stevens v. Brink's Home Security, Inc.,

162 Wn.2d 42, 47, 169 P.3d 473 (2007). DLI defines "hours worked" as "all hours

during which the employee is authorized or required by the employer to be on duty on the

employer's premises or at a prescribed work place." WAC 296-126-002(8).

       In Stevens, a group of employees sued Brink's Home Security, Inc., seeking wages

for the time they spent driving their employer-provided trucks to and from home; the

employees already received compensation for the time spent driving between work sites.

In siding with the workers, the court highlighted a number of facts that it found relevant

to the inquiry under WAC 296-126-002(8). First, the drivers took the trucks home with

them every day and infrequently went to a Brink's office. Second, the workers received

their assignments from home and were always on call while driving. Third, Brink's had

detailed policies limiting how employees used the trucks, which included prohibitions on

running personal errands in the trucks. These factors weighed in favor of classifying the

time spent driving to the first call and driving home from the last call as time spent "on

duty." Stevens, 162 Wn.2d at 45-49.

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No.3l668-8-III
Jensen v. Lincoln County


       The next question was whether the trucks could be classified as the "employer's

premises" or the employees' "prescribed work place." The court found in favor of the

workers on this factor because driving the trucks was an integral part of Brink's'

business. The company's business model relied on technicians going to people's houses

to do installations and servicing. Workers also had to carry all necessary tools and

equipment in the trucks. Workers only reported to a physical corporate office once a

week to refill supplies. Workers also had to do their paperwork in the truck or at the

customer's home. Formal policies required the workers to keep the trucks clean and

serviced. Id. at 49. The Brink's vehicles essentially were mobile offices for the

employees.

       Mr. Jensen understandably analogizes his situation to Stevens. However, the facts

of this case do not support classifYing the time spent driving to the crusher site as time

spent "on duty," nor do the facts support classifYing the county provided SUV as Mr.

Jensen's "prescribed place of work." Unlike Stevens, Lincoln County does not have any

formal policies limiting Mr. Jensen's use of the SUV. In Stevens, the employees were

always on call and could not use the trucks for personal errands. Mr. Jensen has no such

limitations. Mr. Jensen also has a prescribed place of work-the crusher site-where he

works for eight hours a day. In contrast, the employees in Stevens worked out of their

trucks and rarely set foot on the employer's physical premises.

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No. 31668-8-III
Jensen v. Lincoln County


       Driving the SUV also provides no benefit to the county. In Stevens, the employer

provided vehicles benefited the employer because the employees could not work without

specially outfitted vehicles capable of carrying all necessary tools and equipment.

Lincoln County, however, has no reason to care how its crews get to the crusher site and

only provides the SUV as a bargained for benefit. Mr. Jensen argues that driving the

SUV benefits the county because he uses it to transport necessary parts between the

county shop and the crusher site. However, his deposition testimony showed that no one

required him to transport the parts and he performed this function infrequently.

Accordingly, the SUV in this case primarily benefits the employees.

       Instead of Stevens, we find that the facts of this case align more closely with

Anderson v. Dep't o/Social & Health Servs., 115 Wn. App. 452, 63 P.3d 134 (2003). In

Anderson, a group of DSHS employees sought compensation for the time they spent

riding to and from McNeil Island on an employer provided ferry. The claims failed

because the employees were not "on duty" during those ferry rides. During that time, the

workers "engage [d] in various personal activities, such as reading, conversing, knitting,

playing cards, playing hand-held video games, listening to CD (compact disc) players and

radios, and napping." Id. at 454. Although the crew members in this case do not perform

as wide of an array of personal activities while going to and from the crusher site, they



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No. 31668-8-111
Jensen v. Lincoln County


still perform no work during the commute. Instead, the crew members spend the time

talking about sports, politics, and other topics of personal conversation.

       Based on the foregoing facts and discussion, Mr. Jensen is not "on duty" during

his daily commute, and that the county provided SUV is not part of Mr. Jensen's

"prescribed place of work." It simply does not function as the equivalent of a mobile

office or job site. Accordingly, the time that Mr. Jensen spends commuting does not fall

within the definition of "hours worked."

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



WE CONCUR:



Brown, J.
                                                           ~{
                                                            7J
                                                         Siddoway, C.J.




                                              7

