The Employer's Legal Resource: Is an employer required to pay employees for time spent travelling for their job?

09.01.17

Considering recent weather events in Texas and Louisiana, some employers may be focusing their resources and sending workers to those areas for emergency or temporary assignments to assist in a variety of tasks. We thought now would be a good opportunity for a general refresher on the Fair Labor Standards Act (FLSA) rules about when employers need to pay their employees for time spent travelling for work. Of course, our hearts and minds are with all of those affected by Hurricane Harvey, and we wish them well as they begin to recover and rebuild after the storm.

The FLSA requires that employees be paid for all hours worked. This article focuses on the FLSA's travel time rules for non-exempt employees only. Exempt employees are paid a fixed salary regardless of the number of hours worked, so the FLSA's travel time rules do not apply.

Whether time a non-exempt employee spends travelling is considered compensable hours worked depends on whether the travel time takes place within the employee's normal working hours and the kind of travel involved (namely, whether it is (i) out-of-town or within the employee's home community, and (ii) a one-day assignment or requires an overnight stay away from the employee's home community). Not all employee travel is compensable hours worked under the FLSA. But the rules can be tricky.

An introductory reminder: if travel time is considered hours worked under the FLSA, it must be paid on the same basis as any other work. That is, the employee's regular hourly rate when the employee works a total of forty hours or less in a single workweek and the employee's overtime rate (1.5 times regular rate) for hours in excess of forty hours in a given workweek. Likewise, travel time must be treated the same as all other work performed and counted towards the employee's total hours worked for the purposes of calculating overtime compensation.

So, when must you pay for employee travel time? It may be easier to start with when you don't have to pay for travel time. Ordinary home-to-work travel, when the employee drives from home to work before the start of the workday and returns back home after his regular workday is complete, is not considered hours worked. Employers need not pay employees for time spent in their regular commute, even when employees may report to different work locations. This is true regardless of whether the employer provides a company car for the employee's transportation or the employee uses his own personal vehicle. Employers may agree or voluntarily pay such time pursuant to contract, custom, or practice, but they are not generally required by the FLSA to pay employees for their ordinary commuting time.

But travel from home to work in emergency situations (when the employee has gone home after completing his regular workday but must respond to an emergency call later that evening or outside regular working hours) may be paid. Employees who travel a "substantial distance" and report directly to a job location for one of the employer's customers must receive compensation for all travel time to and from the emergency job location. However, the FLSA travel time regulations do not address the situation where an employee receives an emergency call outside working hours and reports back to his regular place of business; thus, employers do not need to pay employees for travel time to and from work for those emergency calls.

Beyond that, the rules get more complicated. Time an employee spends travelling during the workday as part of his "principal activity" is considered compensable hours worked. For example, employees who travel from job site to job site during the workday or when employees are required to first report to the dock to receive instructions or pick up tools and then travel to actual job sites. Ordinary home-to-work and work-to-home commuting time still is not covered, but any other travel time that occurs during the employee's workday as part of his duties is considered "all in a day's work" and must be paid by the employer. This is true even if the employee's regular schedule is 9 a.m. to 5 p.m., but he is asked to stay and finish a job until 8 p.m.; he must be paid for all hours worked. If the employee is required to return to his employer's dock after he finishes the job, his travel from where he finished the job back to the dock is also considered hou rs worked. But if the employee simply goes home instead of returning to the dock, the travel time after he finishes the job is considered normal home-to-work travel and is not compensable. Employees who travel during the workday for some reason other than in connection with their principal job duties (for example, to meet a friend for lunch or when the use of a vehicle is only incidental to the performance of their work) are not compensated for such travel time.

Turning to the situation when an employee is required to travel out-of-town and away from his home community; whether travel time is considered compensable hours worked under the FLSA depends on if it involves an overnight stay or is a one-day special assignment.

When an employee who regularly works in one city is given a special one-day work assignment in another city, the employee must be paid for all of his travel time, even if it is outside his normal working hours. For example, an employee who works in Washington, DC, with normal working hours from 9 a.m. to 5 p.m., is given a special assignment in New York City, with instructions to leave Washington on the train departing at 8 a.m. The employee arrives in New York at 12 noon, completes his special assignment at 3 p.m., and returns to Washington on the train at 7 p.m. The employee's travel time is considered hours worked and he must be paid for the full day, from 8 a.m. to 7 p.m., less regular meal periods. The employee need not be paid for regular commuting time between his home and the railroad depot (because the railroad depot is a substitute for his regular worksite on this day and normal home-to-work travel is not considered hours worked).

When an employee's travel requires an overnight stay away from his home community, time spent travelling is considered compensable hours worked under the FLSA only when it cuts across the employee's normal working hours. Travel time must be paid if it occurs during the employee's normal working hours on any day of the week, regardless of whether the employee is regularly scheduled to work that day. In other words, if an employee who regularly works from 9 a.m. to 5 p.m. on Monday through Friday, is sent on a required out-of-town overnight, the travel time from 9 a.m. to 5 p.m. on Saturday and Sunday, as well as the other days, counts as compensable hours worked. But an employee travelling from 7 p.m. to 11 p.m. (on any day) need not be compensated for that travel time, because it is outside his regular working hours. Again, employers may voluntarily establish a policy or otherwise agree to pay employees a full or partial rate for such travel, but the y are not generally required by the FLSA to pay employees for travel time outside business hours when an overnight out-of-town is required.

Of course, any time spent actually performing job duties or productive work of value while the employee is travelling is considered hours worked under the FLSA, for which the employee must be paid, regardless of whether the travel time itself would otherwise be compensable. This includes, for example, employees who drive delivery vehicles or are required to ride therein as a helper, and employees who respond to work emails or participate in conferences calls while passengers on an airplane or train (even if outside normal working hours).

A final word of caution: keep in mind the underlying purpose and broad coverage of the FLSA as a whole. The law is designed to protect employees in the workplace and ensure they receive just and fair compensation for their work. The FLSA regulations regarding travel time are nuanced and it can be difficult to apply them in the real world. When in doubt, if an employer is unsure whether travel time qualifies as hours worked under the FLSA, err on the side of caution and pay employees the appropriate hourly rate for that time. It is better to be safe than sorry.

By Rebecca D. Bullard, RBullard@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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