It’s Complicated – A Primer on Paying Non-Exempt Employees for Travel Time Under the FLSA
Posted on 08/27/2018 at 03:28 PM by Mike Staebell
I have made hundreds of FLSA presentations over the years. Of those, there were only a handful where the issue of travel time compensation for employees was not raised, even when the topic wasn’t on the agenda. This May I blogged on the latest Wage and Hour Division (WHD) opinion letter guidance on travel time, and noted that it would create confusion for anyone not familiar with the FLSA regulations on when travel time is hours worked, and must be paid.
When travel time of non-exempt employees constitutes hours worked under the FLSA is a confusing issue. In this post I will attempt to make sense of these regulations that cause heartburn for so many employers. The headings below correspond to the Federal Regulations concerning hours worked, and travel time in particular (29 CFR § 785.35 – 785.41).
- Home to work (ordinary situation):
Travel from home to a worksite and back home is not hours worked. This is true if the employee works at a fixed site, or at different worksites on different days. In certain situations, if the worksite is outside the employee’s “normal commuting distance,” the travel time spent in excess of the normal distance may be compensable. For enforcement purposes, WHD has defined “normal commuting distance” as within a one-hour drive of the employee’s home.
- Home to work in emergency situations:
When a non-exempt employee who has gone home after his or her regular workday ends is later called to the worksite of the employer’s customer or client to do an emergency job, the employee is entitled to pay for all time spent on travel to and from that emergency worksite. Interestingly and confusingly, the regulations state that WHD “takes no position” on whether home-to-work travel time is compensable for an employee who receives an emergency call outside of his or her regular hours to report for work at his or her regular place of business. By taking no position, WHD is stating that it does not require that travel time in this situation must be paid.
- Home to work on special one-day assignment in another location:
An employee who regularly works at a fixed location who travels to another location for a special assignment is not engaged in home-to-work travel under the FLSA. In this instance, the travel time to and from the special assignment location is work time. Not all of the travel time is compensable, however. Because the employee would have had regular home-to-work- travel but for the out-of-town assignment, normal commute time may be deducted from the compensable travel time required for the special assignment.
- Travel that is all in the day’s work:
Non-exempt employees who visit several worksites during their workday must be paid for all travel time between worksites, although travel from home to the first worksite, and from the last worksite to home may not be compensable, if the criteria for home-to-work travel are met. For example, it is common in the construction industry for employees to report to a designated meeting place such as a shop or office to receive instructions, pick up tools or materials, or to perform other work there prior to traveling to the first jobsite of the workday. In this case, travel from home to the meeting location is home-to-work travel and not compensable. However, travel from the meeting location, where the workday began, to a jobsite is part of the day’s work, and must be counted as hours worked. If employees meet at a location such as a shop or office and do no work there, the workday has not begun, and the travel from the meeting place to the jobsite is not compensable if the jobsite is within the normal commuting distance. Similarly, the trip from the jobsite worksite back to the shop is not compensable if the employees do no work at the shop after they have returned there. Their workday has ended at the jobsite. And if the employer merely instructs employees to provide their own transportation from home to the jobsite and back, the travel time is not hours worked if the jobsite is located within normal commuting distance.
- Travel away from home community:
Travel for work that keeps a non-exempt employee away from home overnight is compensable when it falls within the employee’s regular workday. Such travel time is also working hours during the corresponding hours on nonworking days. For example, when an employee regularly works from 9 a.m. to 5 p.m. Monday through Friday, any work travel time during these hours is compensable on Saturday and Sunday as well as on the weekdays. Employers often overlook this non-intuitive provision of the hours worked regulations.
On overnight trips, WHD does not consider as hours worked the time spent in travel outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile, assuming the employee does no work while traveling.
- Work performed while traveling:
Work that a non-exempt employee performs while traveling must be counted as hours worked. An employee who drives a vehicle is working, except during bona fide meal periods or when permitted to sleep in adequate facilities furnished by the employer. Work performed while traveling as a passenger, such as checking emails, phone mail or calls, etc., is also hours worked.
- When private automobile is used in travel away from home community:
If an employee is offered public transportation but requests to drive his or her car instead, the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during working hours if the employee had used the public transportation.
- Compensability of travel time of non-exempt employees who voluntarily drive company vehicles between home and work sites:
Certain employers allow employees to drive a company-owned vehicle between home and work. Examples include vehicles driven by employees who perform service work at a customer’s home or business establishment. The vehicle provides a means for the employee to transport parts, tools, equipment, etc., to work sites.
In these situations, time spent traveling between the non-exempt employee’s home and the first work site of the day and between the last work site of the day and the employee’s home need not be compensated if all of the following circumstances exist:
- Driving the employer’s vehicle between the employee’s home and customers’ work sites at the beginning and end of the workday is strictly voluntary and not a condition of employment
- The vehicle involved is of a type that would normally be used for commuting
- The employee incurs no costs for driving the employer’s vehicle or parking it at the employee’s home or elsewhere
- The work sites are within the normal commuting area of the employer’s establishment. As previously mentioned, the WHD’s enforcement policy considers travel of one hour or less to be within the normal commuting area.
This enforcement position is laid out in Chapter 31c10 of the WHD’s Field Enforcement Handbook (FOH), the manual used by all WHD staff to determine the agency’s enforcement policies.
During my WHD career, I observed that the second most common complaint received by the agency involved non-exempt employees who alleged they were not paid for all hours worked. (The number one complaint was misclassification as an exempt employee.) Many hours worked complaints involved travel time. If your business has employees who regularly travel during their workday, or on overnight trips, you would do well to review your pay policies in light of the FLSA’s provisions on travel time, with the help of an employment law professional who knows these complicated rules. The travel time regulations can be easy to misinterpret, and expensive to correct.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
- Mike Staebell
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