Tools of the Trade–Recycled

Fair Labor Standards Act, FLSA, tools of the trade, bicycle deliveries

Employers Have to Take Care of Their Employees’ Wellbeing

A decade ago the Occupational Safety and Health Administration (OSHA) published a final rule concerning employer-paid safety equipment known as Personal Protection Equipment or PPE. The rule carved out certain exceptions, such as for safety shoes, prescription safety eyewear, and other safety accessories, but as a matter of policy—and law—the agency recognized an implicit requirement that employers pay for PPE that is necessary to protect the safety and health of employees. Other business sectors outside of manufacturing and physical labor industries have also recognized the win-win benefits of assisting employees with the purchase costs of everything from laptops to home-Internet service, and other labor laws, in fact, require the employer to pay for certain equipment even if not related to safety. Last month, a federal court in New York ruled in a FLSA case involving bicycle-delivery persons and their job-required bicycles.

Fair Labor Standards Act

When most people think of the Fair Labor Standards Act (FLSA), the first things that come to mind are laws regulating minimum wage, overtime pay, days off, and other regulations pertaining to employee welfare. However, a group of employees who delivered food for a New York Chinese restaurant alleged that the FLSA, as well as New York labor laws, were violated when their employer allegedly failed to reimburse them for the purchase cost of the bicycles they used to make deliveries in a three-square-mile area in Manhattan. The employer initially claimed that the restaurant had its own bikes for use by the delivery personnel and, therefore, he was under no obligation to pay for their private bikes; however, deposition testimony established that the business had only one bike on the premises—and a broken down one at that.

When the Cost Must Be Paid

According to the FLSA, if an employee is required to provide tools of the trade that will be used in, or are specifically required for, the performance of the employer’s work, then it is a violation of the FLSA for the employee not to be paid the cost of such tools in any workweek when the cost of such tools purchased by the employee cuts into the minimum wages or overtime wages required to be paid to him or her. Vehicles, including bicycles, are considered tools of the trade if employees are required to possess and utilize them in the course of their employment. The employer may shift the cost of purchasing tools of the trade to the employee if doing so does not reduce the employee’s wages below the minimum wage or lower the amount of overtime pay due to the employee.

Walking Not an Option

Although the employer argued that the delivery personnel could have walked to make their deliveries, the delivery radius extended approximately 2 miles north and south of the restaurant and 1.5 miles east and west. The employees argued that the distances and the number of deliveries made it impossible or substantially more difficult to make the deliveries on foot as opposed to via bicycles. Accordingly, the court ruled that the bicycles were indeed necessary tools of the trade, and that the employer had to comply with the relevant FLSA regulations concerning reimbursement of the cost of the bicycles.

After receiving his Juris Doctor degree from The John Marshall Law School in Chicago, Mr. Brochin served as an Administrative Law Judge with the Illinois Department of Labor for six years. Following that position, he was a solo practitioner in the fields of Real Estate Law and Commercial Contracts Transactions for twenty years. In 2003, he was recruited to head an outsource title research company in Israel, and since 2007, he has engaged in litigation support for several high profile cases. He has taught Business Law as a faculty member of the Jerusalem College of Technology, and for the past three years, he has authored a wide variety of legal White Papers and timely legal articles as a professional legal content writer.

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