More from the DOL – When Is Travel Time Compensable?
As noted elsewhere in this E-Update, the Department of Labor’s Wage and Hour Division issued several opinion letters under the Fair Labor Standards Act (FLSA) this month, including this one on travel time for non-exempt employees. Opinion letters respond to a wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters for guidance.
Under the Portal-to-Portal Act, which is an amendment to the FLSA, a non-exempt employee’s time spent traveling to and from their workplace – whether a fixed location or different job sites – is not compensable if it occurs “before the employee starts or after the employee stops his principal activity or activities.” However, “travel from [a] designated place to the work place is part of the day’s work, and must be counted as hours worked when an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools[.]” Further, preliminary or postliminary travel, even if required by the employer, is only compensable if it is “integral and indispensable to the principal activities that [the] employee is employed to perform,” meaning that it is required in order for the employee to perform their principal activities.
The FLSA regulations also address other travel circumstances. Special one-day travel to another city is compensable worktime, although the employer may deduct the normal commuting time. Overnight travel is considered travel away from home, and is compensable when the travel time occurs during the employee’s normal working hours, even on non-work days – but not travel time that occurs outside the employee’s normal working hours. And required driving time is compensable, except that if the employee could have taken public transportation but chooses to drive, the employer may choose to pay either the driving time or the time that it would have paid if the employee had taken public transportation.
The WHD addressed travel time questions in the context of a construction employer, but the principles may be generally applicable to other employers:
- At the beginning of the day, the foreman is required to go to the employer’s principal place of business to retrieve a truck that is required to transport tools and materials around separate job sites. The foreman must return the truck at the end of the day, since the trucks are kept at the principal place of business for safety and security reasons. Under these circumstances, an employee who is required to go to the principal place of business to retrieve tools or equipment required to perform their work at a separate job site and return the tools or equipment at the end of the day is performing activities that are integral and indispensable to their principal activities at the job site – and the time spent traveling between the principal place of business and the job site is compensable, whether the job site is local or remote (and requiring overnight stays).
- Laborers may travel directly to the local job site, and their normal commute time is not compensable. But some choose to go to the employer’s principal place of business and ride to the job site on the company truck, driven by the foreman. Where an employee makes a voluntary choice to engage in this extra travel, the travel time between the principal place of business and the job site is not compensable.
- A laborer is staying at a hotel for an out-of-town project and travels from the hotel to the remote job site. The travel time between the hotel and the job site is considered normal, non-compensable commuting time. The travel time between the employee’s home and the hotel at the beginning and end of the trip may or may not be compensable, depending on whether it occurs during normal work hours and whether the employee is a driver or passenger.
- As noted above, an employee who is a passenger is compensated for travel time to an out-of-town project that occurs during their normal work hours, even on non-working days, but not for travel time that occurs outside those hours.
- An employee is offered a ride on the company truck to out-of-town project by the employer, but chooses to drive instead. The regulation addressing other forms of travel speaks only to public transportation, but the WHD notes that the regulations do not address every conceivable situation, and the principles expressed in that regulation apply equally to “other offers of transportation.” Thus the employer would have the option to count as compensable worktime either (1) the actual time driving to the remote project or (2) the amount of time that would have been compensable as a passenger. WHD further notes that its regulations “allow an employer to control those travel costs by offering public transportation to a remote job site on its preferred schedule.”
- A laborer on an out-of-town project is offered overnight accommodations, but chooses to drive back and forth to their home. The initial drive to and final drive from the remote job site would be compensated as above. However, the voluntary intervening drives to and from the remote job site from home are not compensable.