It’s prudent to pay close attention to travel pay regulations because travel-related issues pose a significant risk for wage and hour claims. This is, unfortunately, an often-overlooked area.
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While employers understand that the FLSA requires employees to be paid for all hours worked, they also know that "hours worked" typically starts upon arrival at the work site—not at the time the employee leaves home. Most employers count on the fact that the Portal-to-Portal Act exempts them from compensating employees for time spent "traveling to and from the actual place of the principal activity or activities of employment." In other words, most employers assume that the time employees spend commuting to work does not count as "work time" as defined in the FLSA.
But what happens when an employee doesn't regularly commute at all? Does that change the assumptions? If the regular work site is home, and coming into the office represents a departure from the norm, does that convert a commute into compensable work time? It might, so employers need to be careful. With the growing trend of employees who work from home, this is becoming a question for more and more employers.
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"If the employee does work from home as a regular part of his or her employment (that is, the home is the main work site) . . . the commute time of that employee is much more likely to be considered to be compensable time." Harold Pinkley advised in a recent BLR webinar. This is because the commute to the office in this case is more akin to asking an employee to commute to a new location. Asking employees to commute to a more distant site is compensable—the amount that is compensable is the amount beyond the standard commute time.
While a standard commute is not compensable, the key difference here is that the work-at-home employee's standard commute is non-existent. So any commute real time would be in excess of their standard amount.
For more information on travel pay regulations, order the webinar recording of "Travel Pay Explained: How to Avoid Legal Jams on the Federal Wage and Hour Highway." To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney T. Harold Pinkley, a partner in the Nashville office of Butler Snow, has been a trial lawyer for 25 years. He regularly conducts seminars and workshops for lawyers and business managers on employment-related topics as well as trial evidence and practice issues.