On the Road Again – When Travel Time is Compensable Work Time

Summer is over, kids are back in school, and parents (your hourly employees) are available again for more travel work. They may travel to meetings, job sites, and other locations regularly, occasionally, or once in a blue moon. You may find yourself asking: What “travel time” is compensable work time? Should you be paying your employees for all, some, or none of their travel time? As is the typical answer with labor and employment legal questions, it depends. Below are general guidelines with some scenario examples.

The Law

The Fair Labor Standards Act is the federal wage and hour law. It requires that employees receive at least the federal minimum wage and time-and-a-half for hours worked over 40 in a week, unless they are exempt from that requirement. It also outlines what time is “compensable” or, in other words, what time is considered actual work time. The FLSA states that employees must be paid only for time that is “integral and indispensable” to their “principal activity or activities,” meaning the work they are “employed to perform.”

When does travel time become integral and indispensable to the employee’s work that they are employed to perform? There is not a black-and-white answer. Instead, the FLSA includes many guidelines and regulations on when travel time becomes compensable work time.

For starters, according to the FLSA, “normal travel from home to work is not work time,” regardless of whether the employee works at a fixed location or at different locations. This is also referred to as the standard employee’s “commute time.” However, various factors can turn home-to-work travel into compensable worktime:

• The travel time is intertwined with the employee’s principal activities, e.g., the employee is doing actual work while traveling (receiving instructions, performing essential planning, reviewing documents, etc.).
• Before the employee’s travel, the employee is required to begin working in some form, even if minimal, such as loading equipment for the day’s job, meeting at a location to receive instructions, going over the day’s assignments or plans, etc. (this “starts” the work time, and, once it starts, it continues, other than meal breaks, until the workday is completed).
• The length of time spent traveling from home to a certain work location is longer than “normal” for that employee.
• The employee typically works in a fixed location, but the travel time is for a “special one-day assignment in another city.”
• The employee is traveling between various job sites during the workday. (i.e., travel from site to site after the working time has begun).
• The employee is traveling “away from home” for an overnight trip. The FLSA states that travel time for such an overnight trip is worktime “when it cuts across the employee’s workday.” This is true even if the travel takes place during corresponding working hours on a non-working day, such as Saturday or Sunday. In other words, time spent traveling to and from a work location for an overnight trip is compensable time if the travel time cuts across the employee’s normal working hours (regardless of whether it occurs on a working day). For example, a “9 to 5” employee who travels during that time is “working.” However, on overnight trips, travel from the airport to the hotel and the hotel to the work site is typically considered the employee’s commute time if it is comparable to the employee’s “normal” commute time.

Importantly, if travel time is compensable travel, it should not only be paid at a rate meeting or exceeding the minimum wage but should also be included in determining the number of hours a non-exempt employee works for overtime purposes. Thus, compensable travel time is subject to overtime payment, if necessary.

Below are a few potential scenarios, analyzing whether travel time is compensable under the FLSA. Because the details of certain situations will vary, these are basic factual scenarios that give insight into the FLSA’s basic requirements.

Scenarios

Scenario 1: An employee carpools with other employees and drives everyone to job sites. He drove his personal vehicle and picked up employees (either along the way or at an agreed-upon location). The drive takes 30 to 45 minutes, and the employees do not work during the drive. The employees travel home together after the work at the job site is completed for the day.

As noted above, normal home-to-work travel is generally not compensable time. Employees in this scenario are not asked to perform work during the drive, and they can spend their time as they would like (e.g., sleeping, reading, etc.). During the drive, they do not receive instructions for the day, engage in essential planning, or otherwise engage in activity that is “integral and indispensable” to their “principal activity.” This is especially true if the employees are not required to carpool. Additionally, the travel time is not extraordinary. So, this is not compensable time.

Scenario 2: Same as Scenario 1, but the employee drives a company vehicle. The employer has verbally agreed with its employees that they can use company vehicles to travel to job sites.

The use of a company vehicle does not transform non-compensable travel time into compensable time. According to the FLSA, using an employer’s vehicle for travel, by itself, is generally not part of the employee’s principal activities as long as (1) “the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment,” and (2) “the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee.” Such an agreement need not be in writing and can be an established practice or custom. In this Scenario 2, employees are traveling only 30 to 45 minutes, and there is a verbal agreement for use of the company vehicle. Therefore, the fact that the employee in Scenario 2 used a company vehicle to travel to job sites, alone, would not change the analysis of Scenario 1.

Scenario 3: An employee first reports to headquarters to receive instructions for the day and prepare for meetings. She then drives to work location. After her work is complete for the day, she either returns home or returns to headquarters and then returns home.

Reporting to a central location, such as a headquarters, by itself does not make travel from that headquarters to the worksite compensable. Instead, the reason for reporting to the headquarters must be integral and indispensable to the employee’s principal activities. Here, the employee did not report to headquarters for convenience, because it was a central location, or for other reasons not “integral and indispensable” to her principal activities. Instead, she reported to headquarters to receive instructions for the day and prepare for her work at the work location. These activities are likely integral to her principal activities, so the time is likely compensable. Similarly, if, at the end of the day, the employee returned to headquarters for a meeting or for other reasons “integral and indispensable” to her principal activities, the time is compensable. If, on the other hand, she traveled straight home at the end of the day, this would be normal work-to-home travel time and is non-compensable.

Scenario 4: Employees travel to a work location in another city or town. They either drive themselves or voluntarily carpool and then stay in the city overnight. Once employees arrive at an overnight work location, they sometimes travel from one job site to another during regular working hours. Employees return home upon completion of the job.

Because the employees in this scenario are traveling away from home and are kept away from home between workdays (i.e., overnight), time spent traveling to and from the remote work location is compensable if the travel occurs during the employee’s normal work hours. This is regardless of whether the travel occurs on non-working days, such as Saturdays or Sundays.

Note that normal meal break rules apply, so, if the employees stop for a meal break of 30 minutes or more while traveling and are relieved from work duties during the meal break, the meal break time can be deducted from the hours worked, just as if the employee took a meal break while on the job site.

Additionally, according to the FLSA, time spent traveling from job site to job site during the workday must be counted as hours worked. So, any time spent traveling between job sites during the workday, while on these overnight trips or otherwise, is compensable time.

Takeaways

Travel time is tricky. Whether certain employees’ travel time is compensable will almost always depend on specific facts, so make sure to consult your labor and employment attorneys when making those decisions. Additionally, review your policies regarding payment of travel time. According to the FLSA, if you agree to pay employees for travel time that the FLSA does not require you to pay for, you may be on the hook for it (except for normal home-to-work time). Discuss your policies with you labor and employment counsel and determine whether changes are needed. And remember: Your state(s) may have wage-and-hour laws that differ from the FLSA, so ask your labor and employment counsel about those as well.