A second opinion letter released in November 2020 deals with another issue under the FLSA: when must an employer pay for an employee’s travel time when work sites are located away from the employer’s primary place of business.

The questions posed deal with three scenarios involving non-exempt foremen and laborers on construction sites. In each case, the employer keeps its trucks at its main location. Foremen must go to the employer’s place of business to pick up a truck and then drive the truck to a job site, where it is used to transport tools and materials around the job site. When the job site is local, foremen must then return the truck to the employer’s main location at the end of each workday. For local jobs, laborers may choose to drive directly to the job site or may choose to drive to the employer’s main location and then ride with the foreman to the job site.

When the job site is more than 1.5 hours away, the employer pays for hotel accommodations and a per diem stipend for all employees who work there. Each foremen picks up a truck from the employer at the beginning of the job, drives it to the job site, and does not return it to the employer’s office until the job has been completed. Laborers are supposed to drive their personal vehicles to and from the remote job site at the beginning and end of the job, but some of them want to drive their own vehicles to the employer’s main location and ride to and from the job site with their foreman. Additionally, some laborers choose to travel between the remote job site and their homes each day rather than stay in hotels paid for by the company.

An employer is generally not required to pay employees for the time they spend travelling to and from work at the beginning and end of each workday. This includes travel to and from home or a place of lodging. But when an employee is “required to report to a meeting place to retrieve instructions or to perform other work there, or pick up and carry tools,” the travel from that designated place to the actual work site must be counted as hours worked (and therefore paid by the employer) when such travel is “integral and indispensable to the principal activities that the employee is employed to perform.”

Travel that keeps an employee away from home overnight is travel away from home. Whether that travel is compensable depends on when the employee travels. Travel away from home that cuts across an employee’s normal working hours—even if the employee is travelling on what would normally be a nonwork day.

Under this framework, the DOL concluded that a foreman’s travel time from his home to the employer’s place of business is ordinary home-to work commuting and is not compensable. However, a foreman’s travel time from the employer’s main location to the job site must be paid in each of the scenarios described above. That travel time from the employer’s office to an individual job site is “integral and indispensable” to the work they are hired to perform. Job sites are large and the company needs trucks to transport tools and materials around those sites. And, for safety and security reasons, the employer requires that company trucks be secured at the employer’s office whenever they are not at a job site. Because of this, foremen must be paid for all travel time between the employer’s main location and a job site, regardless of whether that job site is local or remote, and regardless of when such travel time occurs.

The answer is more complex for the laborers who are not foremen. Like foremen, laborers’ travel time to and from a local job site at the beginning and end of a workday is normal commuting between home and work, for which they need not be paid. The fact that they may choose to meet at the employer’s business and ride with the foreman in the company truck from there to the job site does not change their commute into compensable work time – the laborer’s compensable work time does not begin until they arrive at the local job site.

When laborers are working at a remote job site and away from home overnight, their travel to and from the hotel and the job site is normal “home” to work commuting, which is not compensable.

Whether their travel to and from the remote job site at the beginning and end of the job is compensable depends on when they are travelling. Such travel time is compensable only if it cuts across their normal working hours (even if they are travelling not on a normal work day); if they’re travelling to the remote job site outside of their normal working hours, they need not be paid for any such travel time. This is true regardless of whether they choose to drive their own personal vehicles or whether they choose to ride as passengers in company trucks driven by their foremen.

When laborers choose to drive between a remote job site and their homes each day (instead of utilizing the hotel accommodations paid for by the employer and nearer to the remote job site), only their travel to and from the job site at the beginning and end of the job would need to be paid. Any intervening drives between home and the job site during the pendency of the job would not be compensable.

Travel time is complicated. It is a good idea to have clear policies distributed before jobs begin so your employees understand what will and will not be paid. These policies must comply with federal and, if applicable, state laws.

By Rebecca D. Bullard, rbullard@dsda.com