What is considered compensable travel time pursuant to the Fair Labor Standards Act (“FLSA”) is not always clear or intuitive to employers, even for those who usually have a good handle on wage and hour laws. This blog post hopefully will simplify the requirements set forth in the U.S. Department of Labor’s (“DOL”) regulations and interpretive guidance to help clarify when employees must be paid for travel time.
Ordinary Home-to-Work Travel
Likely not a surprise for most employers, employees are not entitled to pay for time that they normally spend commuting between their homes and the work place.
And, keep in mind, this rule applies to employees who report to the same or different work sites.
If, however, a particular work site is well beyond the employee’s typical home-to-work commuting time, e.g. the employee lives five miles from his office, but is asked to commute 50 miles to an alternative work site for a discrete assignment, the employer should consider, for both legal and employee relations reasons, paying for such significantly longer commuting time.
Same Out-of-Town Day Travel
DOL regulations provide for a different rule for out-of-town travel – even if all of the travel and work is accomplished in one day. The regulations provide an example where an employee works in Washington, D.C. during the hours of 9:00 AM to 5:00 PM.
Assume the employee is asked to work on an assignment in New York City for one day, for which he must leave his house at 8:00 AM and arrives in New York City at 12:00 PM whereupon he starts to work. He completes the work at 3:00 PM, and arrives back in Washington, D.C. at 7:00 PM. How much, if any, should this employee be paid for traveling to New York?
The DOL takes the position that this travel cannot be considered normal (and non-compensable) home-to-work commuting, even if it is accomplished in one day. Rather, the DOL provides that such travel must be compensated because it is an integral part of the work to be performed. The regulations provide, however, that employers may deduct the time it took the employee to travel from his home to the train station, airport or bus depot, which is treated as the equivalent to normal home-to-work commuting time.
Travel That Is “All in a Day’s Work”
Employers are required to pay for all work-related travel time spent by employees throughout the course of the work day. This rule specifically applies to employees who travel as part of their principal activity from one job site to another.
Remember, however, that employers may still deduct normal home-to-work commuting, such as the time that an employee spends commuting from the last job site of the day to her home.
Overnight Out-of-Town Travel
Probably the most interesting and least intuitive travel time rule is overnight out-of-town travel. In these cases, the DOL requires employers to compensate employees for travel time that occurs during the employee’s normal work day.
For example, returning to our employee who works from 9:00 AM to 5:00 PM, he must be compensated for only his travel time that coincides with his normal work day.
What is more, this rule applies to any day of the week, even days on which the employee does not normally work. For example, an employee who typically works Mondays through Fridays, but travels for business during her normal working hours on a Saturday or Sunday must be paid for such travel time.
In addition, it is important to note that if an employee is offered public transportation, but requests to drive her own car instead, the employer may count as hours worked either the time spent driving the car or the time she would have had to count as hours worked during working hours if she had used public transportation.
Also, employers need not pay employees on out-of-town trips for their regular meal periods.
Lastly, employees must always be paid for any actual work they perform while traveling.
Please keep in mind that this blog post addresses the legal requirements pertaining to travel time pay; however, employers may always pay for travel that does not necessarily require compensation pursuant to the FLSA and DOL regulations.
Also note that it is important to confirm whether the state or locality within which your traveling employees work does not have different, i.e. more rigorous, travel pay requirements than the FLSA. You should always consult your human resources specialist, internal or external counsel to make sure you are in full compliance with not only federal, but also state and local law requirements.
Lastly, it is always the best practice to provide clear guidelines to your employees in your employee handbook or as a standalone policy so there is no confusion on anyone’s part as to when employees should be compensated for travel time.