When Is Travel Time Compensable -- It Depends*
“Travel is fatal to prejudice, bigotry, and narrow-mindedness, and many of our people need it sorely on these accounts. Broad, wholesome, charitable views of men and things cannot be acquired by vegetating in one little corner of the earth all one's lifetime.”
―Mark Twain,The Innocents Abroad / Roughing It
The travel time rules of the Fair Labor Standards Act (“FLSA”) determine what is compensable working time. They also set the working time rules for most other federal wage laws including the Service Contract Act, the Davis-Bacon Act and the Contract Work Hours and Safety Standards Act. The FLSA defines “employ” as including “to suffer or permit to work,” 29 U.S.C. 203(g), but does not explicitly define what constitutes “work.” The U.S. Department of labor (“DOL”) has issued regulatory guidance to fill in the gaps. Most notably, that guidance states: “The principles which apply in determining whether or not time spent in travel is working time depend on the kind of travel involved.” 29 C.F.R. § 785.33.
The Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251- 262, was enacted to ease some of the confusion as to what was and was not compensable working time. It provides that employers do not need to compensate employees for:
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which [an] employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
29 U.S.C. § 254(a). These standards make clear that compensable worktime generally does not include time spent commuting to or from the job site. FLSA regulations further clarify that “[n]ormal travel from home to work is not worktime” regardless of “whether [the employee] works at a fixed location or at different job sites.” 29 C.F.R. § 785.35. Unlike ordinary commute time, however, so-called “portal time” spent in “travel from job site to job site during the workday, must be counted as hours worked.” 29 C.F.R. § 785.38.
This leads us to some general guidelines that may prove useful for employers to decide whether to pay for travel time for nonexempt workers.
General Guidelines
· Employers do not have to pay for time spent commuting to work or to an alternate location in the same metropolitan area. Commuting time spent traveling to the office or an alternate location for the day is ordinarily not compensable working time.
· Compensable business travel generally may include attending work-related activities at a location not in proximity to the normal work location. Such time can be compensable if the travel to the location would be substantially different than normal commute and would generally require additional time, effort and/or cost.
· Employers must ordinarily pay for all working time spent in business trip travel that does not entail an overnight stay. For work-related functions located in proximity to the normal work location, where additional commuting time is not required, travel to the function from home should be considered as normal commute and not counted toward work hours.
o Examples of work related activities for employee that would not be considered business travel would be those taking place in office buildings or hotels in and around the employer’s offices where the employee departs from home for the alternate work location.
o If an employee reports to the office in the first instance at the start of the work day, then all travel time thereafter is compensable unless there is an overnight stay and the other rules set forth below are met.
· For functions in the general metropolitan area but requiring significantly additional commuting time, work time should be started after the normal commute would have ended.
As an example, if an employee leaving home first thing in the morning needs to attend a meeting on the other side of the city which will require an additional hour over the normal commute to attend, that hour may be appropriately added to the hours worked that day.
If the commute time is not in excess of normal no additional time need be added to work hours.
Travel of more than an hour beyond the worker’s normal commute ordinarily is deemed significant and should be compensated.
· For all other travel on the Company business, all time will be compensable working time unless it satisfies all four prongs of the following test: the travel is overnight, on a common carrier, outside of regular working hours, and no productive work is performed.
“Overnight” means that the employee spends the night at a hotel or other accommodation and does not immediately return home.
“Common carrier” means a train, plane, subway, bus, taxi, limousine, or passenger in a car. Driving a car, if required by the company, is physical labor and compensable working time. Of course, if the employee chooses to drive after being given the option of travel by a common carrier, then the driving time is not working time.
“Outside of regular working hours” means outside of the employee’s core or normal hours of work. If an employee normally works on Monday through Friday 9:00 a.m. to 5:30 p.m., travel during these hours, including on Saturday and Sunday, is compensable.
“No productive work” means that the employee is not engaged in work. If work is done on a plane, for example, that is compensable time. Thus, travel time is work time when the employee is required to drive a car, transport equipment, or report to work before traveling.
Meal periods where employees are relieved of duties and free to eat while traveling are not compensable working time.
Time spent traveling to airports is normally a non-compensable commute, unless the employee has already commuted to work for the day or is traveling to the airport from the office or from home after a day’s work.
Single day’s trips are generally compensable where there is no overnight stay.
Time spent in a hotel, otherwise free of duties, is not compensable working time.
· For overnight travel to attend a meeting, the full work-related agenda period would be considered work time. This includes meal times that are imbedded within the meeting, such as lunch time or required “working breakfasts or dinners” where business is being conducted.
Meeting preparation and support activities taking place outside of the normal agenda would be considered as work time.
If breakfast is available prior to the start of business agenda, the breakfast time would not be considered work time.
If a lunch or dinner or after meeting activity is primarily of a social nature and not mandatory, it would not be considered as work time.
Recent DOL Guidance
DOL recently started issuing new FLSA opinion letters offering guidance on selected topics. One of those new opinion letters concerns travel time for technicians. It is a Wage Hour Opinion Letter designated as FLSA2018-18 and dated April 12, 2018. Therein, DOL considered several sophisticated travel time issues, two of which we cover here.
The first issue was how to handle workers who have no fixed schedule and who travel on a week-end and/or evening. DOL first expressed factual skepticism over whether the employees actually had no fixed scheduled. But assuming that was true, DOL offered the following guidance:
There are different methods that an employer may use to reasonably ascertain an employee’s normal work hours for purposes of determining compensable travel time under 29 C.F.R. § 785.39. One permissible method is to review the employee’s time records during the most recent month of regular employment. If the records reveal typical work hours, the employer may consider those as the normal hours going forward unless some subsequent material change in circumstances indicates the normal hours have changed. If the records do not reveal any normal working hours, the employer may instead choose the average start and end times for the employee’s workdays. As another alternative, in the rare case in which employees truly have no normal work hours, the employer and employee (or the employee’s representatives) may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable. See WHD Opinion Letter (March 17, 1964) (approving an employer’s use of an employee’s average daily number of hours worked as the number of compensable hours on a travel day, “provided [the employer] and [the] employees agree on this method of determining the normal workday”). This is not an exhaustive list of the permissible methods for determining an employee’s normal start times or end times under 29 C.F.R. § 785.39. But when an employer reasonably uses any of these methods to determine employees’ normal working hours for purposes of determining compensable travel time under 29 C.F.R. § 785.39, WHD will not find a violation for compensating employees’ travel only during those working hours.
Id. The second issue of most interest is how to handle travel in a company vehicle. In that respect, DOL affirmed earlier guidance and summarized the state of the law as follows:
[T]he law specifies that use of a company-provided vehicle does not, alone, make an ordinary commute compensable, provided that “the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.” 29 U.S.C. § 254(a); see also WHD Opinion Letter, 1997 WL 998025, at *1 (providing that agreements to use employer-provided vehicles need not be written, and may also be “based on established industry or employer practices”).
Id.
Conclusion
It pays to carefully check the DOL regulations and, if necessary, get the advice of counsel when determining whether travel time is compensable.
_________________________________________________________
*Credit for portions of this article belong to my former colleague and friend Shlomo Katz. Yes, sometimes I recycle old works, particularly good ones like this blog. Responsibility for posting this blog, however, is entirely mine.