Beyond the Clock – An Employer’s Guide to Knowing When the Course and Scope of Employment Begins and Ends
Employers should not let the idea of the employee “clocking in” and “clocking out” lull them into a false sense of security that employment begins and ends when the employee enters and exits the office building.
In 1979, the New Jersey Legislature amended the Workers Compensation Act to define the start and end of employment with the “premises rule.” What this means is employment commences when the employee arrives at the employer’s place of business and ends when the employee leaves the employer’s place of business, excluding areas not under the control of the employer. N.J.S.A. 34:15-36. Since the statutory amendment, the courts have not necessarily been consistent in assessing the compensability of a claim filed for an injury that occurred “off the clock.” It is important that employers understand that sometimes what happens after 5 p.m. may still be counted as under the employer’s jurisdiction and responsibility by the Court.
As a general rule routine travel to and from the office building does not constitute acting in and during the course and scope of employment and as such, does not give rise to employer liability. There have, however, been cases in certain circumstances where employers have been held liable for employee injuries that occurred in the office parking lot where the employer exercises “control” over the employee parking area.
Control over employee parking is not encapsulated by parking lot ownership. The courts have found control to exist where the employer does not own the parking lot, however, compels employees to park in a certain part of the lot to benefit of business. Livingstone vs. Abraham & Straus, Inc., 111 N.J. 89 (1988). Furthermore, control exists where the employer does not own or maintain the parking lot but directs employees’ routes to and from the parking lot to the work place. Erhlich v. Strawbridge & Clothier, 260 N.J. Super. 89(1992).
However, on April 1, 2014, the Supreme Court of New Jersey issued a ruling in favor of employers finding an employer was not liable for injuries sustained by the employee while walking to the office from an offsite parking garage. In Hersh v. County of Morris, the employer provided the petitioner/employee permission to park in one of several rented-spots on the third level of a privately-owned parking garage. Hersh, A 59 12 (April 1, 2014). The employee parked her car, exited the garage and was struck by a motor vehicle at a cross street while on her way into work. Initially, the judge of compensation found her injuries compensable stating that parking lots designated or provided for employees are a part of the employer’s premises for the purposes of workers compensation. The Appellate Division agreed. However, the Supreme Court reversed the decision of the Appellate Division stating because the employer did not control the garage, the route to and from the garage to the office and did not expose the petitioner to any additional hazards, the injury occurred outside of the employer’s premises and therefore was not compensable under the Workers Compensation Act. The employee in Hersh had permission to park in the garage, but was not required to. Also, she had a choice of routes to take when walking into the office from her car. These factors negated any purported control of the employer over employee-parking as well as egress and ingress to the work place.
Before Hersh, the New Jersey Supreme Court opined in Livingstone vs. Abraham & Straus, Inc., that when an employer controlled where his employee parked, particularly at a distant location, the injury sustained by the employee while in the parking lot was within the reach of the workers compensation statute. The facts of this case were the employer, a mall tenant, directed employees to park in a distant end of the mall-owned lot and thereby allowed its customers to use the closer spaces. The petitioner was injured while walking toward the building after she parked her car. The employer neither owned nor was responsible for the maintenance of the lot where petitioner was injured. However, the injury was found to be within the course and scope of employment because the employer’s parking directive exposed employees to an added hazard and provided the employer a business benefit.
In Erhlich v. Strawbridge & Clothier, the employee clocked out of work and was injured on a public sidewalk as she was returning to her car. In this case, the employer required employees to enter and exit a specific door way which required them to use a stairwell when coming to work. The employee was injured when she took two steps off the stairwell and fell. The judge of compensation dismissed the petitioner’s case finding the injuries were not work related. However, the Appellate Division reversed the order of the judge of compensation and found the petitioner’s injuries were compensable because the employer designated the route the employees were to take when entering and exiting work.
In order to limit exposure for employee parking lot injuries, it is prudent for employers to refrain from providing employees parking directives and/or directives for entering and exiting work. However, the Hersh case provides employers a refreshing clarification of the 1979 amendments that limited compensability of off premises injuries. Simply providing free parking two blocks from the employer’s office building does not extend the employer’s liability for those two blocks.
Pictured: Ronni Bright
Ronni Bright is an associate in Weber Gallagher’s Mount Laurel office. She defends employers in traumatic and occupational injury claims. She may be reached at email@example.com.