Time Spent Commuting on an Employer’s Mandatory Bus System Is Not Compensable

The Portal-to-Portal Act and the Employee Commuting Flexibility Act amended the Fair Labor Standards Act to exclude commuting time from being compensable, even where employees are required to use employer-provided transportation to reach the work site, according to the U.S. Court of Appeals for the Fifth Circuit.

Under the FLSA, employees must be paid for all time spent working. The Portal-to-Portal Act clarified that time spent traveling between home and work is not compensable work time. Further clarification was provided by the Employee Commuting Flexibility Act, which provided that traveling to the worksite in an employer’s vehicle is not compensable when the use of the vehicle is: (1) within the employer’s normal commuting area and (2) subject to an agreement between the employer and employee. The employee will only be paid for the time in the employer’s vehicle if they are actually performing work or the commute is connected to the employee’s specific work obligations.

In Bennett v. McDermott International, Inc., in order to mitigate traffic in a rural area, the employer implemented a transportation system that required employees to travel to park and ride sites to get on employer-provided buses to the worksite, where they performed welding and pipefitting duties. The park and ride sites were difficult to reach by public transportation, there was limited parking, and the buses were often full, which resulted in employees traveling to another park and ride site. This commuting process could take several hours a day, and the employees sued for wages and overtime based on the unpaid commuting time.

The Fifth Circuit rejected the employees’ claims. Based on its precedent, it noted that whether commuting time is compensable depends on whether employees are doing work during the commute – not on the logistics of the travel. The Fifth Circuit also found the fact that the employees were sometimes required to take work calls or discuss job duties for the particular day did not make the commute time compensable. The commute was not intertwined with their welding and pipefitter duties. As such, regardless of the inconvenience and length of the commute, it was not compensable.