Commuters, Road Warriors & Getting Paid

One of my best friends called me about his son’s job. His son is a crew chief for a company that installs energy systems. Each day he commutes to the company’s central work site and then takes a company truck with a work crew and equipment to job sites throughout the state. The employer now takes the position that the time spent traveling to and from the job sites, which can be up to two hours away, will no longer be compensated. My friend asked, “Can they do that?”

The answer is “probably not.” The answer is found in the Fair Labor Standards Act, 29 U.S.C. §201 et seq. and the Portal-to-Portal Act of 1947, 29 U.S.C. §251 et seq. and the Department of Labor’s regulations. The general rules are fairly simple, but even slight differences in fact situations can make a difference in the outcome.

The usual situation is where an employee commutes from home to a work site before his or her regular workday and returns home after work. This home to work travel is generally not compensable even if the employee is required to report to different job sites, which may be many hours away from the employee’s home. 29 C.F.R. § 785.35. The situation is not any different if employees meet at a central location and either carpool or take employer provided transportation to a distant job site. This is seen as being non-compensable time under the Portal-to-Portal Act of 1974 because it is preliminary to the actual performance of work.

However, the result changes if an employee is required to report at a meeting place or central office to receive instructions, to perform other work or to pick up tools, parts and materials. Then the travel from the meeting place to the designated place to the work is part of the day's work, and must be counted as hours worked regardless of any contract, custom, or practice. If the employee is required to return to the employer’s premises after work, then the return trip is compensable working time. However, if the employee is allowed to go directly home, the time is non-compensable as “travel from work”. 29 C.F.R. § 785.38.

Additionally, if the employee performs work during travel time, he or she must be compensated for the time spent working. This work could include making telephone calls on a mobile telephone, working on a laptop computer, or studying plans and specifications for the day’s work. Obviously, if the employee’s duties include driving a vehicle for the employer, those activities are compensable. 29 C.F.R. § 785.41.

The Department of Labor also recognizes a related concept known as “travel that is all in the day’s work”. The DOL’s regulations instruct that “[t]ime spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.” 29 C.F.R. § 785.38.

If the employer provides the employee with a vehicle to be used to travel to work, this does not create a payment obligation if; (1) the vehicle is one normally used for commuting such as a car, pick up truck or van, (2) it can be used on the employee’s normal route for commuting, (3) the employee incurs no additional costs for using the vehicle, and (4) the home-to-work drive is within the normal work area. However, if the vehicle is not an ordinary type of commuter vehicle, such as a bus, dump truck or panel van, then the time spent driving to work is seen as being “so closely related” to the employer’s work that it becomes compensable under the FLSA.
Another common scenario is when an employee is called to back to work to attend to an “emergency situation.” In those cases, all of the time spent, including travel time to the work site, is compensable time worked which could result in overtime compensation. 29 C.F.R. § 785.36.

The Department of Labor’s regulations point out that a special problem arises when an employee is sent on a special assignment to another city or distant location. In those circumstances, the travel time, excluding commuting time to an airport or train station and normal meal time, is viewed as integral to the employee’s principal activity and therefore is compensable. 29 C.F.R. § 785.37.

The DOL has also published guidance on how to treat travel away from home on over night business trips. Travel away from home is work time when it cuts across the employee's workday since the employee is simply substituting travel for other duties. This includes travel time on week ends or other nonworking days. For example, if an employee normally works from 9 a.m. to 5 p.m. during the week, travel time during these hours is work time as will be travel time on Saturday and Sunday.

It is important to know that the DOL has an enforcement policy of not counting travel time outside of regular work time (e.g. 9 a.m. to 5 p.m.) as compensable work time. 29 C.F.R. § 785.39.

If you have any questions about an employer’s obligation to pay for commuting or other travel time, or any other wage and hour issue, please contact Tom Barron at 856 642 6445 or at tbarron@barpostlaw.com.

***The information included in this newsletter is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.