Whether time spent traveling is paid work time depends on the type of travel involved: commuting, day travel, and overnight travel. Travel time that is work time is subject to both the minimum wage and overtime pay requirements of the Fair Labor Standards Act.
(Don’t forget to check state laws on travel pay; some states, for example California, have laws that are quite different from the federal laws.)
Commuting To and From Work
The Portal-to-Portal Act provides that traveling to and from where work is performed at the beginning and end of the workday is not work time. This is true whether the employee works at a fixed location or at different jobsites.
Commuting includes the time spent walking from the parking lot to the worksite. However, if an employee has to report to a central meeting site to pick up equipment, supplies, or co-workers, or to get instructions, work time starts at that location.
Employers may agree to pay for ordinary commuting time. However, such time does not have to be counted as hours worked and is not subject to the minimum wage and overtime requirements.
Travel During Regular Work Time
Time that an employee spends traveling as part of his or her principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked.
For example, if an employee normally finishes his work on the premises at 5 p.m. and is sent to another job, which he finishes at 8 p.m., and is required to return to his employer’s premises, arriving at 9 p.m., all of the time is work time. However, if the employee goes home instead of returning to his employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.
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When an employee has gone home after completing his or her day’s work and is subsequently called out at night to travel a substantial distance to perform an emergency job for one of the employer’s customers, all time spent traveling is work time. However, the Wage and Hour Division has not addressed whether travel to and from the regular workplace in an emergency after hours is work time, nor has it defined “substantial distance.”
Commuting in an Employer-Owned Vehicle
The Portal to Portal Act provides that travel between home and work in a company-owned vehicle is not paid work time as long as the travel is within the normal commuting area for the employer’s business, and the use of the vehicle is subject to an agreement between the employer and the employee or the employee’s representative. This exception also applies to time spent in activities incidental to the use of the vehicle for commuting (such as stopping for gas).
Where the vehicle is also used for emergency calls outside regular working hours, a determination would have to be made as to whether the vehicle was being used primarily for the benefit of the employer or the employee. The frequency of the emergency calls would be one factor considered.
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According to a Department of Labor Opinion Letter, commuting time in the employer’s vehicle is not paid work time if:
(1) Commuting in the employer’s vehicle is strictly voluntary and not a condition of employment;
(2) The vehicle involved is the type of vehicle that would normally be used for commuting;
(3) The employee incurs no costs for driving the employer’s vehicle or parking it at the employee’s home or elsewhere; and
(4) The worksites are within the normal commuting area of the employer’s establishment.
In tomorrow’s Advisor, travel away from the normal workplace, plus news about a timely clarifier for your policies: Travel Pay—The Webinar.