The Law at Work: Background checks; compensation for travel time
by Beth O'NealBackground checks
I own a construction company, and I handle all the hiring myself. We have been taking on more jobs, so I can’t be at every work site all of the time. Should I be doing any kind of background check since my workers aren’t always supervised and they are working at my clients' homes?
Although you are not required by law to conduct background checks when you hire, there are many reasons to conduct some investigation into a prospective employee's past. Employers have a duty to use reasonable care in the selection and retention of employees when employees come into contact with customers.
There are several things you can do to reduce potential liability in case of an incident caused by one of your employees. You should at least ask for a few professional references, take the time to speak with the people whose names are provided by the applicant, and keep notes of the conversations. Employers may also request the criminal history of an applicant. The level of criminal information that can be obtained depends on what type of employer is requesting the information. The Massachusetts Criminal History System Board maintains the records, called Criminal Offender Record Information reports.
You may also request a credit history from prospective applicants, but you must have the specific written consent of the applicant. Before you request criminal history information on an employment application, require a CORI, or request a credit history, you should seek advice from an attorney to learn the scope of information to which you are entitled and how to legally obtain such information.
Compensation for travel time
Occasionally, I need to send my employees out on a sales call for my business. They usually try to arrange to leave directly from home and go on the sales call in the morning or leave from the sales call to go home at the end of the day. I know I don’t need to pay for commuting time, but should I be paying for the time if they go somewhere other than our office?
The Fair Labor Standards Act, a federal law, governs whether employers are required to compensate employees for travel time in connection with their jobs. You are correct that in general, ordinary home-to-work/work-to-home travel time is not considered hours worked. However, if the employee has other responsibilities, such as transporting other employees, picking up supplies, or making stops to receive instructions or pick up other items, the time is likely compensable. For travel other than ordinary commuting time, there are many factors that must be considered in determining whether the time must be paid time. These factors include: whether the employee is driving or riding public transportation, whether the employee owns the vehicle, the type of vehicle being used, whether the employee is traveling to another city, whether the travel is made during normal work hours and the type of position held by the employee. If an employee works in multiple locations, some travel time may be compensable if the employee is required to stop at one location and then proceed to another during the workday.
In your situation, you likely will not be required to compensate your employees for travel time, provided the sales calls are in the same city as your office. If the sales call requires your employee to travel a significant distance from your office, then the time may be compensable because the employee is traveling at your request and for your company’s benefit. This long distance travel is different than a normal commute. For example, if the employee is required to drive to the train station, take a train back and forth, and then drive home, the train ride is time worked, but the drive back and forth to the train station is not. The Department of Labor, which enforces the FLSA, has an interactive Web site that prompts the user with specific questions and then provides answers with specific references to the applicable provisions of the FLSA. To access the site and explore the nuances of compensable travel time, go to http:www.dol.gov/elaws/esa/flsa/hoursworked/screenER49.asp.
Beth O’Neal, Esq., is a partner in the Boston law firm of Masterman, Culbert & Tully LLP.
Send questions to law@capebusiness.net or The Law at Work, Cape Business, 704 Main St. (Route 6A), Dennis, MA 02631.
This column, which may be considered advertising under the ethical rules of certain jurisdictions, is intended as a general discussion of the topics covered, and does not constitute the rendering of legal advice or other professional advice by Masterman Culbert and Tully LLP or its attorneys. In compliance with U.S. treasury regulations governing tax practice, any U.S. federal tax advice contained in this publication is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties or in connection with the promoting, marketing or recommending to any individual of any transaction or matters addressed therein.
Originally published in the March/April 2007 issue of Cape Business
Beth O'Neal Beth O’Neal, Esq., is a partner in the Boston law firm of Masterman, Culbert & Tully LLP. 
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