Time is Money: A Quick Pay and Hour Tip on… Paying for Travel Time | Epstein Becker & Green

As COVID-19 restrictions have continued to ease or be completely lifted, employees have gradually returned to work in the office and are stepping away from it for work-related reasons. With regard to travel time in the context of employment, the answer to the question “Do I have to pay for it?” often doesn’t have a straight answer. On the contrary, under the Fair Labor Standards Act (“FLSA”) and United States Department of Labor (“DOL”) regulations, if the time an employee spends traveling is compensable, it depends on the type of trip. In this month’s Time Is Money segment, we provide a reminder on when and how employers should pay employees for travel time.

Ordinary commuting

The time spent by employees during their normal commute, i.e. the journey from home to their usual place of work before the start of the working day and from work to home at the end of the working day. work, is not considered as working time and is therefore not eligible for compensation. To see 29 USC § 254(a)(1) (“walking, riding or traveling to and from the actual place of performance of the main activity or activities which [an] the employee is employed to perform” are not compensable activities); 29 CFR § 785.35 (“The normal commute from home to work is not work time.”).

This general rule applies regardless of whether the employee works at a fixed location or on different construction sites. However, if a particular work site is much further away and the commute to that location is much longer than the employee’s typical commute (for example, 5 miles versus 50 miles), the employer should consider paying for this longer ride.

Same day travel out of town

If an employer requires an employee who regularly works at a fixed location in one city to travel for a one-day assignment to another city, travel time to and from that out-of-town destination counts as time worked and must be paid, even if it occurs before and after the employee’s normal working day. Indeed, unlike an ordinary home-to-work trip, this trip is carried out for the benefit of the employer to meet the needs of a particular and unusual mission, and therefore it is qualified as an integral part of the “main that employee was hired to perform. To see 29 CFR § 785.37.

However, the employer can deduct the time that the employee would normally devote to going to the regular place of work because, had it not been for the special assignment, the employee would have had to report to the regular place of work.

Travel that’s “all in a day’s work”

An employee who travels from job site to job site during the workday should generally be paid for that time. For example, if an employee needs to report to a meeting location to receive instructions or pick up tools and then travel to a job site, the trip from the meeting place to the job site is “part of the day’s work”. and counts as hours. work. To see 29 CFR § 785.38.

If the employee has to return to the employer’s premises after the last work of the day, this travel time also counts as hours worked. However, if the employee returns directly home from the last construction site instead of returning to the employer’s premises, this becomes a normal home-to-work journey, which is not compensable.

Overnight trip out of town

Traveling an employee away from home involving an overnight stay involves a more nuanced analysis to determine if, and how much, of that travel time is compensable. In this scenario, the DOL takes the position that any travel time that occurs during the employee’s “normal working hours” on any day of the week counts as time worked, whether or not it occurs. a normal working day (for example, Monday to Friday) or a non-working day (for example, Saturday or Sunday). To see 29 CFR § 785.39. This is because the employee is simply substituting travel for other duties.

Conversely, the DOL does not consider as working time the time an employee spends traveling as a passenger outside of the employee’s normal working hours. An important exception to this general rule is when an employee is doing actual work while travelling, such as reading documents or sending work emails on a train or bus, or when the main business of the employee is driving a truck, bus or other vehicle. . In this last example, travel is the work for which the employee was hired and must be paid. To see 29 CFR § 785.41.

This analysis is more difficult to apply when the employee does not have normal working hours. The DOL published orientation outlining three permitted methods that employers may use to reasonably determine an employee’s normal hours of work for the purpose of determining compensable travel time:

  • If an employee’s hours of work records for the most recent month show typical working hours, the employer may consider them to be normal hours, unless a subsequent material change in circumstances indicates that normal working hours have changed;
  • If the records do do not reveal any typical working hours, the employer can choose the average start and end times of the employee’s working days; or
  • If an employee truly does not have regular working hours, the employer and employee may agree on a reasonable length or time frame in which travel outside of the employee’s home community employee are compensable.

Once the employee arrives at their out-of-town destination for a business trip involving an overnight stay, the analysis essentially reverts to that as if the employee were in their home community. In other words, the time spent traveling from the hotel to the place of work before the normal working day, and from the place of work to the hotel at the end of the working day, is like a normal commute and does not therefore does not need to be paid. And if the employee is completely relieved of duty and does no actual work at the hotel, the employer can probably consider that time as uncompensable “off duty”. To see 29 CFR § 785.16. Of course, an employer must compensate the employee for any actual work performed while on the trip.

other considerations

The fact that certain travel times are compensable under the LSF has important consequences. Above all, employers must implement a method of tracking travel time. Having an accurate record of these hours allows the employer to properly compensate an employee who has made compensable travel. And because compensable travel time constitutes “hours worked,” it counts toward the 40-hour-per-week threshold for overtime under the RSA.

Finally, as with all wage and hour matters, it is important to confirm whether the state or locality in which your traveling employees work does not have different travel compensation requirements than the FLSA. as some state and local laws may have more stringent travel compensation requirements. .

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