Wage and Hour Tips: When is Travel Time Considered Work Time
By Lehr Middlebrooks Vreeland & Thompson, P.C.
August 29, 2018
This article was prepared by Lyndel L. Erwin, Wage and Hour Consultant for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Mr. Erwin was the Area Director for Alabama and Mississippi for the U. S. Department of Labor, Wage and Hour Division, and worked for 36 years with the Wage and Hour Division on enforcement issues concerning the Fair Labor Standards Act, Service Contract Act, Davis Bacon Act, Family and Medical Leave Act and Walsh-Healey Act. Mr. Erwin can be reached at 205.323.9272.
One of the most confusing areas of the FLSA is determining whether travel time is considered work time. The following provides an outline of the enforcement principles used by Wage Hour to administer the Act. These principles, which apply in determining whether time spent in travel is compensable time, depend upon the kind of travel involved.
Home to Work Travel
An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home-to-work travel, which is not work time.
Home to Work on a Special One-Day Assignment in Another City
An employee who regularly works at a fixed location in one city is given a special one-day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct (not count) time the employee would normally spend commuting to the regular work site. For example, a Huntsville employee who normally spends ½ hour traveling from his home to his work site that begins at 8:00 am is required to attend a meeting in Montgomery that begins at 8:00 am. He spends three hours traveling from his home to Montgomery. Thus, employee is entitled to 2 ½ hours (3 hours less the ½ hour normal home to work time) pay for the trip to Montgomery. The return trip should be treated in the same manner.
Travel That is All in the Day's Work
Time spent by an employee in travel as part of his/her principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.
Travel Away from Home Community
Travel that keeps an employee away from home overnight is considered as travel away from home. It is clearly work time when it cuts across the employee's workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on non-working days. As an enforcement policy, Wage Hour does not consider as hours worked that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
For example, an employee who is regularly scheduled to work from 9:00 am to 6:00 pm is required to leave on a Sunday at 3:00 pm to travel to an assignment in another state. The employee, who travels via airplane, arrives at the assigned location at 8:00 pm. In this situation the employee is entitled to pay for 3 hours (3:00 pm to 6:00 pm) since it cuts across his normal workday, but no compensation is required for traveling between 6:00 pm and 8:00 pm. If the employee completes his assignment at 6:00 pm on Friday and travels home that evening, none of the travel time would be considered as hours worked. Conversely, if the employee traveled home on Saturday between 9:00 am and 6:00 pm, the entire travel time would be hours worked.
Time spent driving a vehicle (either owned by the employee, the driver, or a third party) at the direction of the employer while transporting supplies, tools, equipment or other employees is generally considered hours worked and must be paid for. Many employers use their “exempt” foremen to perform the driving in order not have to pay for this time. If employers are using nonexempt employees to perform the driving, they may establish a different rate for driving from the employee’s normal rate of pay. For example, if you have an equipment operator who normally is paid $20.00 per hour, you could establish a driving rate of $10.00 per hour and thus reduce the cost for the driving time. The driving rate must be at least the minimum wage. However, if you do so you will need to remember that both driving time and other time must be counted when determining overtime hours and overtime will need to be computed on the weighted average rate.
Time spent by an employee in travel, as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5:00 pm and is sent to another job, which he finishes at 8:00 pm, and is required to return to his employer's premises arriving at 9:00 pm, all the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8:00 pm is home-to-work travel and is not hours worked.
The operative issue regarding riding time is whether the employee is required to report to a meeting place and whether the employee performs any work (i.e. receiving work instructions, loading or fueling vehicles, etc.) prior to riding to the job site. If the employer tells the employees that they may come to the meeting place and ride a company provided vehicle to the job site and the employee performs no work prior to arrival at the job site, then such riding time is not hours worked. Conversely, if the employee is required to come to the company facility or performs any work while at the meeting place then the riding time becomes hours worked. In my experience, when employees report to a company facility, there is the temptation for managers to ask one of the employees to assist with loading a vehicle, fueling the vehicle or some other activity, which begins the employee’s workday and thus makes the riding time compensable. Therefore, employers should be very careful that the supervisors do not allow these employees to perform any work prior to riding to the job site. Further, they must ensure that the employee performs no work (such as unloading vehicles) when he returns to the facility at the end of his workday for the return riding time to not be compensable. Recently, an employer told me that to prevent the employees performing work before riding to a job site, he would not allow the employees to enter their storage yard but had the supervisor pick the employees up as he began the trip to the job site. In the afternoons, the employees were dropped off outside of the yard, so they would not be performing any work that could make the travel time compensable.