Employment: Course and Scope: Breaks

MONTANA SUPREME COURT DECISIONS
Bevan v. Liberty Northwest Ins. Corp. [12/21/07] 2007 MT 357 When considering whether an employee has substantially deviated from the scope of employment, the Montana Supreme Court’s focus properly encompasses both the employee’s activity and the benefits the employer derives. The court concluded that the claimant’s activity was not a substantial personal deviation because she regularly left work on her breaks; she would have returned within the allotted time but for the accident; her employer allowed employees to leave the property during breaks; and her employer’s convenience was the reason for her taking the break when she did.

Bevan v. Liberty Northwest Ins. Corp. [12/21/07] 2007 MT 357 The Montana Supreme Court held that the Workers’ Compensation Court correctly utilized and analyzed the four Carrillo factors where the employee was away from her employer’s premises during her paid fifteen-minute break, and was injured in an automobile accident upon returning to work after letting her dog out at home.
Bevan v. Liberty Northwest Ins. Corp. [12/21/07] 2007 MT 357 Substantial credible evidence supported this Court’s finding that the employee was injured while taking an authorized paid break where the employee’s supervisor testified that employees were encouraged to take breaks even if the employees took breaks at times other than scheduled; employees were not required to obtain supervisory approval before taking a break but were responsible for ensuring that the employer was adequately staffed; and employees were required to sign out on a timesheet which the supervisor testified the employee did “fairly consistent.” Additionally, the employee testified that she generally left her employer’s premises on her breaks and was paid for these breaks.
Carrillo v. Liberty Northwest Insurance, 278 Mont. 1, 922 P.2d 1189 (1996). Claimant was within course and scope of employment during her coffee break when she was struck by an automobile while crossing a street en route to a gift shop to purchase a mug for a co-worker leaving employment. Rather than apply section 39-71-407(3), MCA (1991), relating to travel, the Supreme Court looked to factors enunciated by other courts, and as set forth in Larson’s Treatise, for determining whether employees on break are covered. Those factors include (1) whether the employee was paid during the break; (2) whether right to break is fixed in the employment contract pursuant to policy or regulation; (3) whether there are restrictions on where the employee may go during break; (4) whether the employee’s activity during the break constituted a substantial personal deviation.
 
WORKERS' COMPENSATION COURT DECISIONS

Holtz v. Indemnity Ins. Co. of North America [04/06/16] 2016 MTWCC 4 Section 39-71-407(2)(a), MCA (2013), applies to all breaks, regardless of duration.  This Court ruled that a flight attendant’s full-day layover constituted a “break” within the meaning of the statute because it was an interval within her scheduled work time in which she was not required or expected to perform job duties, and could attend to personal matters.
Bevan v. Liberty Northwest Ins. Corp. [12/06/06] 2006 MTWCC 38 To determine whether the injury sustained by Petitioner during her break is compensable the Court considers four factors: 1) whether the employee was paid during the break; 2) whether the right to a break is fixed in the employment contract or pursuant to policy or regulations; 3) whether there are restrictions on where the employee may go during the break; and 4) whether the employee’s activities during the break constitute a substantial deviation. Carrillo v. Liberty Northwest Ins., 278 Mont. 1, 922 P.2d 1189 (1996).
Bevan v. Liberty Northwest Ins. Corp. [12/06/06] 2006 MTWCC 38 Where Petitioner’s employer set forth general parameters regarding breaks, such as limiting the breaks to 15 minutes, allowing employees to leave the premises, and placing the responsibility for ensuring adequate customer service coverage on employees, the requisite restrictions necessary to satisfy the third Carrillo factor (whether there are restrictions on where the employee may go during break) are met.
Bevan v. Liberty Northwest Ins. Corp. [12/06/06] 2006 MTWCC 38 Where evidence presented at trial showed that Petitioner’s break would have been of normal duration but for her injury, the break was paid, and Petitioner’s departure from the premises was with the employer’s consent, Petitioner’s activity did not constitute a substantial deviation, the fourth factor in Carrillo.