The Question of Travel Time
EDITOR’S NOTE: Through this article, AFSA is attempting to bring this issue to contractor members’ attention and recommends members discuss this law’s implications with a local labor attorney and review company policy to ensure that they are in compliance with the law.
Recently, we have fielded questions from members concerning whether, and under what circumstances, hour (nonexempt) employees must be paid for travel time. As discussed below, the Fair Labor Standards Act (FLSA) requires compensation for much, but not all, of the employees’ travel time. Further, the determination in an individual situation is highly fact-specific, requiring that the employer analyze travel time on a case-by-case basis.
To assist in our exploration of the federal law in this area, we can apply it against three common factual scenarios:
- Scenario 1: An hourly employee travels by plane from home state on a Sunday for a job beginning at 8:00 a.m. on Monday at an out-of-state job site. The job generally lasts Monday through Friday, with travel home on Friday after the job is over or, occasionally, on Saturday when Friday flights are not available.
- Scenario 2: An hourly employee travels from home to the employer’s facility to receive instructions or pick up equipment and then travels to the job site location. The travel time from home to facility varies depending on where the employee lives and can range from 15 minutes to 1 hour or more. All of this travel is in an assigned company vehicle.
- Scenario 3: Hourly employees drive from their homes to multiple different job site locations on any given day.
The Law As mentioned above, the governing federal law is the FLSA, both its text and its implementing regulations, as well as the interpretation given to the statute and regulations by the Wage and Hour Division (WHD) of the Department of Labor, which enforces the FLSA. The FLSA, as a general matter, requires employers to pay employees for their work. 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. Supreme Court initially explained that compensable time under the FLSA includes employees’ activities “controlled or required by the employer and pur-sued necessarily and primarily for the benefit of the employer and his business,” as well as “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-92 (1946). Such “expansive definitions” provoked a flood of litigation, and Congress responded swiftly by passing the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262, which correspondingly limited the operation of the FLSA.
The Portal-to-Portal Act 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 work. 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,“travel from job site to job site during the workday, must be counted as hours worked.” 29 C.F.R. § 785.38.
At times employers require that employees travel away from their home communities overnight. In these circumstances, the regulations provide that “[t]ravel away from home is clearly work-time when it cuts across the employee’s workday. The employee is simply substituting travel for other duties.” 29 C.F.R. § 785.39. Importantly, that compensable time includes “all time spent in such travel during the hours which correspond to [the employee’s] normal hours of work, including those hours on Saturday and Sunday which correspond to [the employee’s] normal working hours on other days of the week”). Thus, by way of example, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. As an enforcement policy, WHD “will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.” 29 C.F.R. § 785.39.
In short, “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.
Scenario 1 Scenario 1 addresses the compensability of travel time for hourly employees who take a flight on Sunday for a job that begins on Monday at 8:00 a.m. These employees return home on Friday after the job concludes, although they occasionally travel home on Saturday if earlier flights are not available.
Such travel away from the employee’s home community “is clearly worktime when it cuts across the employee’s [regular] workday,” as “[t]he employee is simply substituting travel for other duties.” 29 C.F.R. § 785.39. And, as referenced above, WHD does “not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.” Id.
A related issue raised in Scenario 1, however, is how to determine what travel time is compensable when there is no regular workday. As a general matter, in its investigations, WHD carefully scrutinizes claims that employees have no regular or normal working hours. In WHD’s experience, a review of employees’ time records usually reveals work patterns sufficient to establish regular work hours. In Mendez v. Radec Corp., 232 F.R.O. 78 (W.D.N.Y. 2005), for example, a company contended that it did not owe employees pay for travel away from their home communities because the employees did not have “normal working hours.” Id. at 86. The court ultimately was “not persuaded by this argument,” as it analyzed the employees’ time records and, among other things, observed that the records “tend[ed] to be consistent” in terms of both the employees’ start times and end times. Id. at 86-87. That said, WHD recognizes that certain employees do not have normal work hours.
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 may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable. 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.
Importantly, “any work which an employee is required to perform while traveling must be counted as hours worked” regardless of whether it falls within the regular workday. 29 C.F.R. § 785.41. For example, when work planning is conducted during the travel time, such as review of schematics or discussion of the division and order of work on the job, then those employees engaged in that activity must be paid for that time, regardless that the “staging meeting” occurs in a moving vehicle on a Sunday evening.
This raises the issue of whether compensable travel time will differ if an employee chooses to forego travel by plane and instead travels by automobile. “If any employee is offered public transportation but requests permission to drive his [or her] car instead, the employer may count as hours worked either the time spent driving the car or the time he [or she] would have had to count as hours worked during working hours if the employee had used the public conveyance.” 29 C.F.R. § 785.40. In other words, the employer may compensate the employee for the shorter period of time.
As for compensability of travel time for an employee’s commute between a job site and the hotel in which he or she spends the night, WHD has confirmed that when an employee is temporarily working at a fixed remote location, generally, the travel time from the hotel to the work site and back would be considered ordinary home-to-work travel, and, as such, need not be compensated.
Scenarios 2 and 3 Scenarios 2 and 3 deal largely with ordinary commutes to and from work. In Scenario 2, hourly employees travel from their homes to the employer’s facility to receive instructions or pick up equipment before traveling to the job site. Employees’ commute time to and from home may vary, and they ordinarily use a company vehicle. In Scenario 3, employees may drive from home to multiple different job sites on any given day.
As confirmed above, compensable worktime generally does not include time spent commuting between home and work, even when the employee works at different job sites. See 29 U.S.C. § 254(a); 29 C.F.R. § 785.35. WHD takes the position commuting time between home and a job site not to be compensable “unless the time involved is extraordinary.” A reason-ability test must be applied by the employer, however, as WHD has observed that when an employee’s “commute to the first job site in the morning takes four hours, it would consider the greater portion of travel time compensable.” While the line between reasonable and unreasonable is not entirely clear, it is safe to say that the equivalent of any long commute in a business’ locale need not be compensated. Even with some amount of uncertainty, this rule provides the employer with great flexibility. As such, it may shift employees from job site to job site, even on a daily basis, despite the resulting variation in commute times, provided that the employees travel to the job site directly from their homes.
Travel between job sites after arriving at work, however, always is compensable. 29 C.F.R. § 785.38 (“[T]ravel from job site to job site during the workday, must be counted as hours worked. Where 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, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice.”).
Finally, there is the question of whether use of a company vehicle makes otherwise noncompensable travel time compensable. Of course, as discussed above, travel between job sites during the workday is already compensable. 29 C.F.R. § 785.38. With respect to commuting time, however, the 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) (providing that agreements to use employer-provided vehicles need not be written, and may also be “based on established industry or employer practices”).
Recap Travel time outside of work hours or as a commute generally need not be compensated. Conversely, travel time during work hours, especially between facilities and/or job sites, or travel time during which work is conducted, must be compensated. Further, an employer must analyze any given travel event or type of travel time on an individualized basis. And, as always, if you have questions or issues not addressed, you are encouraged to contact me directly.
ABOUT THE AUTHOR: Daniel R. McCabe is AFSA’s general counsel and is an attorney with Canterbury Gooch Surratt Shapiro Stein Gaswirth & Jones, P.C. in Dallas.
EDITOR’S NOTE: AFSA’s contractor members are entitled to a free initial consultation with McCabe on labor and employment issues. Questions should be directed to McCabe via phone 972-239-7493 or fax 972-490-7739. He will give initial advice, at no cost, to AFSA members, and if further action is deemed necessary, can assist members with finding counsel in their city.