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Computing commuting time

by Connor Beatty

Ask anyone with a long daily commute, and he will agree that it certainly feels like the workday begins long before he steps inside the front doors of the workplace each morning. Under the Fair Labor Standards Act (FLSA), commuting time is not considered working time, although there are a number of exceptions to that general rule. Recently, a Maine employer was forced to pay $52,000 in back wages to its employees when it was tripped up by one of the exceptions. 

Facts
Paul G. White Tile Company is one of the largest flooring contractors in New England, with offices in Portland and Bangor as well as Stratham and Keene, New Hampshire. The company requires its workers to report to a company warehouse at the beginning of each workday, travel to the particular worksite, and then return to the company warehouse at the end of the day.

Although many of the worksites are close to the warehouse, employees can sometimes spend two or more hours driving to and from a particular worksite. The company didn’t compensate its employees for their travel time to worksites. According to the U.S. Department of Labor (DOL), that practice violates the FLSA. The result: Paul G. White Tile Company agreed to pay its employees $52,000 in back wages.

FLSA scenarios
Most employers know that under the FLSA, employees must be paid at least minimum wage for all hours worked up to 40 hours per week and compensated 1½ times their regular rate of pay for any work beyond 40 hours in a week, unless they qualify for an exemption. However, there is often confusion about what constitutes “hours worked,” especially when it comes to travel time. Here are a few different scenarios that may apply to your workers:

  • Typical daily commute from home to work. Commuting time before or after the start of the workday isn’t considered working time and therefore isn’t compensable. This is true regardless of whether the employee reports to the same location for work each day or works at multiple jobsites. Additionally, otherwise noncompensable commuting time doesn’t become compensable simply because the employee commutes in a company-owned vehicle, loads and transports ordinary equipment and tools, or performs other minimal activities infrequently.
  • Working during a commute. An exception to the first example would be if the employee is able to perform job duties during his commute. Certainly, your employees shouldn’t be reading and sending e-mails while driving! However, in some cases, it’s possible to start the workday en route to the office. Employees may perform work while taking public transportation to the office or use their smartphones to dictate a memorandum or participate in a conference call while driving. Although commuting time is not compensable per se, an employee should be compensated if he performs work during his commute.
  • Working from home and then commuting. If an employee performs tasks that would trigger the start of the workday before she begins her commute, the subsequent commute may be considered working time. A court is more likely to rule that a workday has begun when the employee performs job-related tasks regularly, and such tasks take up a significant amount of time. By contrast, minor tasks that take only a few minutes wouldn’t be enough to trigger the start of a workday. For example, skimming through e-mails over breakfast would not trigger the start of a workday, but writing long, detailed responses to e-mails may. This issue has been the source of much litigation in recent years because it has been difficult for courts to articulate a black-and-white rule for employers to easily follow.
  • Commuting for a special assignment. Another exception to the general commuting rule would be a scenario in which an employee typically works at a fixed location in one city but is given an assignment in another city on a particular day and returns home the same day. The employee should be compensated for the time spent traveling to and from the nontypical work location, although the employer could deduct the time he would usually spend commuting to the regular worksite. In other words, any extra time the employee spends commuting as a result of the special assignment should be counted as working time.
  • Commuting to a centralized meeting place. This scenario describes the Paul G. White case. When an employee is required to report to a certain meeting place to receive instructions, pick up tools or equipment, or perform other work, any travel time from the meeting place to a subsequent worksite should be counted as working time. This is true regardless of the custom or practice in the industry.
  • Travel as a principal activity. Travel that is part of an employee’s principal job responsibilities, such as traveling from jobsite to jobsite, should be counted as working time.
  • Long-distance travel. Travel that keeps an employee away from home overnight will be considered working time when the travel cuts across normal working hours. However, if the employee is traveling outside normal working hours and is simply a passenger (e.g., on a plane or train), the travel time doesn’t need to be counted as working time.

Takeaway
As Paul G. White Tile Company learned the hard way, misclassifying working time can be a costly mistake for employers. However, it’s becoming increasingly challenging to meet the FLSA’s requirements given the way technology has reshaped both the workplace and the workday. When an employee checks his e-mail from home over breakfast, not only do you need to consider whether the time spent checking e-mail is compensable, but you also need to consider whether the employee has officially started his workday, making his subsequent commute compensable.

An employment lawyer can help you comply with the FLSA by applying the specific facts regarding your workers to the general rules laid out in this article.

Connor Beatty is an attorney with Brann & Isaacson in Lewistonn, Maine. He may be contacted at cbeatty@brannlaw.com.

Need to learn more? Listen to the BLR on-demand webinar On or Off the Clock? How to Ensure You’re Paying Employees for All Hours Worked.  Labor and employment law attorneys Stefanie Renaud and John S. Gannonan provide an in-depth briefing on the wage/hour rules that apply to tricky situations so you know when you need to pay workers, and when you don’t. For more information, click here.