Thanks to confusing and vague terminology used in the federal Fair Labor Standards Act (FLSA), it is far from easy to comprehend the numerous rules and exceptions that determine whether an employee must be compensated for certain activities. While the question of whether an employee is performing a compensable work task seems like it should be an easy one, there are many gray areas, and the answer is not always clear. There may be no area of greater confusion than employee travel time. 
What is ‘compensable work time’?
The FLSA guarantees compensation for all work or employment engaged in by covered employees. In a rather unhelpful twist, the drafters of the Act didn’t bother to define the terms “work” or “workweek,” perhaps assuming that the definitions were obvious. The FLSA does provide a rather circular definition for the term “employ,” defined as “to suffer or permit to work.” In other words, any work activities that an employee performs at the request of the employer, and any activities that an employer knows about or should know about and allows an employee to perform, even if not requested, are considered work time.
Certain types of activities are unquestionably considered work time. When a manufacturing employee is making widgets on an assembly line, there is no dispute that the time is compensable work time. In fact, all the time an employee spends performing primary work activities, whether performed at the place of employment, at home, or anywhere in between, is considered compensable work time.
That’s true even if the employee performs work without your permission. That’s because it’s the employer that ultimately benefits from the work. If you don’t want the work to be performed, you are responsible for prohibiting the employee from performing work beyond what is desired. All time that an employee spends actually performing his primary work activities must be counted as compensable work time.
But what about ancillary activities such as time spent driving to the plant or time spent walking from the parking lot to the front door? There’s no question that employees wouldn’t undertake those activities except for their employment. Only when the activity is considered “work” time is it compensable, and the courts have stated that the determination of whether a particular activity is work time must be made on a case-by- case basis.
What is ‘travel time,’ and when must it be paid?
Travel time generally refers to the time that an employee spends traveling to, from, or between work sites. Whether an employee must be paid for the time depends on when the travel occurs, the purpose of the travel, and whether any work-related activities are performed while in transit. Generally speaking, the time an employee spends traveling is considered compensable work time if (1) the travel is required by or for the convenience of the employer or (2) a work activity is performed during travel.
The most basic kind of travel time is home-to-work and work-to-home travel, generally referred to as “commuting time.” Under the FLSA, as amended by the Portal-to-Portal Act of 1947, traditional home-to-work (and vice versa) commuting time is not compensable, even if the regular place of business is very distant and the employee doesn’t have a regular work site.
For example, for a television repairman who works from a truck rather than an office, compensable work time would begin when he reaches the first stop of the day and would end when he leaves the last stop before heading home. All time spent traveling to different repair stops in between the first and the last appointment is compensable work time (also referred to as “travel that is all in a day’s work”). If, while traveling home from his last stop of the day, the repairman is required to perform work activities ― e.g., dictating an oral report of the day’s repair jobs (although doing so while driving might be frowned on) ― that time would be compensable.
The travel time riddle gets more complex when it involves employees who usually don’t travel for work. A common scenario involves travel away from the normal place of business. When an employee must engage in travel that takes him away from his home community for a one-day assignment, the time generally is compensable.
For example, if an employee who is based in Baltimore is sent to a meeting in New York City, all time spent traveling to and returning from the meeting would be considered compensable travel time. The same is true even if the travel occurs outside the employee’s normal work hours. To add a little extra confusion to the mix, the FLSA allows you to deduct the amount of time that the employee normally would spend commuting to and from his regular work site.
When travel involves an overnight stay at a location far away, the rule is very different. Contrary to the previous scenario, overnight travel away from home is compensable only when the travel time cuts across the employee’s normal hours of work.
For example, consider an employee whose normal work hours are 9:00 a.m. to 5:00 p.m. If he boards a flight at 3:00 p.m. and arrives at his hotel at 7:00 p.m., only the time spent traveling through 5:00 p.m. is compensable. If the employee chooses a red-eye flight and the travel occurs during the overnight hours or on the weekend, none of the travel time is compensable. It’s important to remember that any portion of travel time that the employee spends actually performing work-related tasks is still compensable.
Other rules and exceptions
It should be noted that travel time rules are applicable only to nonexempt employees. That’s because all exempt employees are paid a weekly salary regardless of the hours worked, so calculating travel time is unnecessary.
There. That’s all you ever need to know about travel time. Just kidding. There are many other special rules and exceptions to keep in mind.
Michael G. Petrie is Vice Chair of the Employment & ERISA Practice Team at Jorden Burt LLP in Simsbury, Connecticut. He practices primarily in the areas of employment litigation, ERISA, insurance coverage, municipal law, commercial litigation, and directors and officers liability. He is also a frequent contributor to Connecticut Employment Law Letter. He may be contacted at mpe@jordenusa.com.