The law on whether the time nonexempt employees spend traveling is compensable is confusing and often trips up employers. This article is designed to explain the rules and provide guidance on how to pay for a nonexempt employee’s travel time under federal law.
Background
The Fair Labor Standards Act (FLSA) is the federal statute that regulates wage and hour law. The Act requires employers to compensate nonexempt employees by paying the federal minimum wage for all hours worked and paying overtime at 1½ times their regular hourly rate for all hours worked over 40 in a workweek.
Employees must be paid for all hours worked in a workday, from the first principal activity to the last principal activity. A “principal activity” includes any activity that is an integral and indispensable part of an employee’s work.
Commuting Time
The most basic type of travel time is home-to-work travel and work-to-home travel, generally known as “commuting time.” Under the FLSA, as amended by the Portal-to-Portal Act of 1947, the time employees spend commuting is not compensable. Similarly, the time employees spend commuting in an employer-provided vehicle generally is not considered hours worked as long as:
- The vehicle is a type of vehicle that is normally used for commuting.
- The employee is able to use her normal route for the commute.
- The employee does not incur additional costs by using the company vehicle.
- The home-to-work and work-to-home travel is in the company’s normal commuting area.
- The use of the vehicle is subject to an agreement between the company and the employee.
In addition, time spent commuting from home to an alternate work location that is within reasonable proximity to the employer’s office is not considered hours worked. However, if the alternate work location is not within reasonable proximity to the employee’s home and the travel requires additional time, effort, or cost, the time may be considered hours worked.
Caution: What if you have a nonexempt employee who telecommutes and begins her workday by responding to e-mails for an hour and then is required to report to the office for a monthly meeting? In that scenario, the time spent traveling to and from the office likely would be compensable.
Overnight Travel
Travel that keeps an employee away from home overnight is considered “travel away from home” and is compensable only if it “cuts across” (i.e., falls within or overlaps with) her normal work schedule. For overnight travel, the employee is deemed to be simply substituting travel for her other duties.
In that situation, travel time is not only hours worked on regular workdays during normal work hours but also time spent traveling during corresponding hours on nonwork days (e.g., during the weekend). Travel time also includes any time an employee spends making phone calls, sending e-mails, navigating, or completing work while she is a passenger, even if it is outside normal work hours.
For example, if an employee who regularly works from 9:00 a.m. to 5:00 p.m. Monday through Friday is required to travel on Saturday between those hours, the travel hours are considered hours worked. The following situations are not considered compensable time: travel as a passenger outside of regular work hours, travel to and from an airport, travel to and from a train or bus station, regular meal times, and off-duty time (including sleeping in employer-furnished facilities).
There is a caveat for transportation choices. If an employee is not offered the option of using public transportation and is required to drive himself to a distant location, the entire time spent driving is compensable. However, if the employee is offered the option of using public transportation and chooses to drive himself to a distant location, the employer can count the actual time spent driving or the hours that overlap with his regular work hours as compensable work time.
One-Day Travel
If an employee who regularly works at a fixed location in one city is given a special one-day assignment in another city that requires him to travel to another city outside the normal commuting area and he returns home the same day, all of the time is considered hours worked, even travel that is outside his normal work hours. The employee is traveling for the employer’s benefit at the employer’s request. Thus, he must be paid for his time.
For example, Bob works in Miami, and his regular work hours are 9:00 a.m. to 5:00 p.m. He is given a special assignment in Orlando (three hours away). He leaves Miami at 7:00 a.m., works until 4:00 p.m., and returns to Miami at 8:00 p.m. Bob’s actual work hours are 11:00 a.m. to 4:00 p.m., but his compensable work hours are 7:00 a.m. to 8:00 p.m.
However, an employer may deduct the time an employee would have spent on her normal commute to work and regular meal breaks from her paid travel time. For example, an employee who regularly spends 30 minutes commuting, takes a three-hour train ride for a one-day trip to another city during her regular work hours, and performs no work on the train must be compensated for the 2½ hours that are not part of her regular commute.
Other Types of Travel
One exception to the general rule that ordinary home-to-work travel is not compensable is an emergency call-back situation. Under the “Emergency Home to Work” rule, if an employee who has gone home after completing his day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for a customer, all time spent on such travel is working time.
Time employees spend traveling as part of their principal activities must be counted as hours worked and is compensable. For example, time spent traveling between jobsites or traveling from a central reporting site (e.g., to pick up equipment, supplies, coworkers, or instructions) to a first jobsite and working while traveling (even as a passenger) must be paid.
If an employee performs work while traveling, the time is compensable, regardless of when the travel occurs. Thus, an employee who performs research on her laptop while on an airplane outside her regular work hours must be compensated for the time.
Employer Takeaway
The federal rules regarding travel time are confusing, and the outcome depends on when the travel occurs, the purpose of the travel, and whether employees perform any work-related activities while in transit. Even the most experienced HR professionals can be tripped up by the rules, so it’s advisable to consult with an experienced employment law attorney to ensure your travel time policy is compliant with federal and state law.
Finally, note that the travel time rules apply only to nonexempt employees. Exempt employees are paid a salary regardless of how many hours they work, so calculating travel time is unnecessary.
Lisa Berg, an editor of Florida Employment Law Letter, can be reached at lberg@stearnsweaver.com or 305-789-3543.