Vermont “Volunteer” Driver for Transit Authority is not an Employee

Driver’s Mileage Reimbursement Did not Constitute “Wages”

Reimbursement for mileage driven at rates established by the Internal Revenue Service is not “wages” as defined by Vt. Stat. Ann. tit. 21, § 601(14), held the Supreme Court of Vermont recently in Perrault v. Chittenden County Transp. Auth., 2018 VT 58, 2018 Vt. LEXIS 57 (May 25, 2018) . Accordingly, a “volunteer” driver for a county transit authority, who sustained serious injuries in a vehicular accident while transporting a rider in the volunteer’s private vehicle, could not recovery workers’ compensation benefits; she was not a statutory employee for purposes of the state’s workers’ compensation laws. Quoting Larson’s Workers’ Compensation Law, the Court stressed that tests utilized to discern whether a claimant was an employee versus an independent contractor were not applicable to the circumstances in the instant case.

Claimant/Driver Was Subject to Some Control

The transit authority (“CCTA “) used “volunteer” drivers, including claimant, to provide transportation to certain qualifying residents who lived outside the transit authority’s regular bus routes. Drivers were required to meet standards set by CCTA and were subject to certain restrictions, which were similar to the restrictions governing CCTA’s regular drivers. The volunteers were required to participate in trainings, were subject to discipline including dismissal, and had to undergo a background check. Drivers in the volunteer program were also required to refrain from smoking and using handheld devices while driving, had to keep a home telephone and report traffic tickets to CCTA, and were prohibited from discussing politics with riders.

Claimant Needed “Extra” Money

Claimant testified that she took on the “volunteer” position because she needed extra income. During her time as a driver for CCTA, claimant received an average of $265.49 per week, calculated on the basis of claimant’s mileage at the federal mileage rate. This amount became part of claimant’s regular, weekly household budget.

Commissioner of Labor Ruled Driver Was Not an Employee

The Commissioner of Labor determined, via summary judgment, that claimant was not an employee, as she did not receive wages. Claimant appealed, contending she was an employee of CCTA, at least for purposes of workers’ compensation law.

Supreme Court Affirmed Labor Commissioner’s Decision

Quoting Larson’s Workers’ Compensation Law, the high court stressed that the issue of whether claimant could be considered a statutory employee for purposes of workers’ compensation did not turn on whether a common law, contractual employee-employer relationship existed between the parties. Claimant “entered into the employment of” CCTA only if she received something that met the definition of wages under Vt. Stat. Ann. tit. 21, § 601(14).

Regular Monetary Payments Do Not Always Equate with “Wages”

The Court acknowledged that the claimant received regular payments from CCTA. Those payments were not wages, but rather reimbursement for expenses associated with the mileage she drove. Such a “reimbursement” made claimant whole; it was not an “earning.” While the reimbursements were beyond the actual short-term day-to-day cost of maintaining claimant’s car, and while the payments became a significant contribution to claimant’s regular, weekly budget, the payments were nonetheless reimbursement for long-term depreciation in the value of her car due to the miles she drove as a participant in CCTA’s volunteer driver program.

The Court stressed that while Vermont’s definition of wages for purposes of workers’ compensation was broad enough to encompass non-monetary earnings, it would not stretch so far as to encompass payments that only served to make the recipient whole. Therefore, the Court concluded that claimant did not receive wages and cannot be considered an employee of CCTA.

Similar to Recent Maine Court Decision

Readers should note that the Perrault decision is quite similar and consistent with another recent decision from the Supreme Judicial Court of Maine, Huff v. Regional Transp. Program, 2017 ME 229, 175 A.3d 98 (2017). In Huff, the Court cited Larson’s and held the fact that the reimbursement of mileage charges exceeded the driver’s direct costs did not, in an of itself, make the payment “wages,” for purposes of the state’s workers’ compensation laws.

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