April 25, 2018
The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) has issued a new Opinion Letter on whether employers must compensate employees for travel time. These letters are issued to help the public better understand compliance with certain federal laws. They’re based exclusively on the facts provided by an employer that asks the agency for a formal, written opinion. The letter described in this article provides an employer with details of when it had to pay its traveling staff members in three different scenarios.
Basic Legal Principles and History
The Fair Labor Standards Act (FLSA) generally requires employers to pay employees for their work. The law defines “employ” as including “to suffer or permit to work,” but doesn’t explicitly define what constitutes “work.”
In 1946, the U.S. Supreme Court explained that compensable time under the FLSA includes employees’ activities “controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business,” as well as “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.”
According to the DOL, such “expansive definitions provoked a flood of litigation,” and “Congress responded swiftly” by passing the Portal-to-Portal Act of 1947. It provides that employers don’t have to compensate employees for:
1. Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which an employee is employed to perform, and 2. Activities that are preliminary to or postliminary to the principal activity or activities, which occur either prior to the time on any particular workday when an employee commences, or subsequent to the time on any particular workday at which he or she ceases such principal activity or activities.
These standards make clear that compensable work time generally doesn’t include time spent commuting to or from work. FLSA regulations further clarify that “normal travel from home to work isn’t work time” regardless of “whether [the employee] works at a fixed location or at different job sites.” Unlike ordinary commute time, however, “travel from job site to job site during the workday, must be counted as hours worked.”
At times, employers require that employees travel away from their home communities overnight. In these circumstances, the regulations provide that travel away from home is clearly work time “when it cuts across the employee’s workday. The employee is simply substituting travel for other duties.”
The agency stated: “As an enforcement policy, WHD “will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.”
— Source: Opinion Letter FLSA2018-18
Scenario 1: Out-of-Town Travel In this situation, the WHD addressed whether travel time should be compensated for hourly technicians who take a flight on Sunday for training that begins on Monday at 8:00 a.m. These technicians return home on Friday after the training concludes, although they occasionally travel home on Saturday if earlier flights aren’t available. The hourly technicians don’t work at a fixed location. Instead, they work at various customer locations each day. They have no fixed daily schedules and often work 8 to 12 hours a day repairing, inspecting and testing cranes.
They may, at times, work up to 16 hours per day depending on the condition of the cranes, the availability of parts, and other variables. A technician may need to stay in a hotel overnight and return in the morning to complete the job. On occasion, the company’s technicians travel out of town for training courses. The WHD notes, that under federal regulations, travel away from an employee’s home community “is clearly work time when it cuts across the employee’s regular workday,” as “the employee is simply substituting travel for other duties.” The WHD doesn’t consider “time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile” to be work time. The central issue raised in Scenario 1, however, is how to determine what travel time must be compensated when there is no regular workday.
Determining Regular Work Hours
A review of employees’ time records usually reveals work patterns that are sufficient to establish regular work hours, according to the WHD. In this scenario, it’s known that the technicians typically begin work at 7:00 a.m. Therefore, the only apparent irregularity in their work schedule was when they ended work.
The WHD states there are different methods that an employer may use to reasonably ascertain an employee’s normal work hours for purposes of determining travel time that must be compensated. One acceptable method is to review an employee’s time records during the most recent month of regular employment. If the records reveal typical work hours, the employer can consider those as the normal hours going forward — unless some subsequent material change in circumstances indicates that the normal hours have changed. If the records don’t reveal any normal working hours, the employer can instead choose the average start and end times for the employee’s workdays.
There are rare cases when employees really don’t have normal work hours. As an alternative in those cases, the employer and employee (or the employee’s representatives) can negotiate and agree to a reasonable amount of time or time frame in which travel outside of employees’ home communities will be compensated. The WHD stated that it won’t find a violation for compensating employees’ travel when an employer reasonably uses any method noted above to determine employees’ normal working hours for purposes of determining travel time that must be compensated during the working hours that were agreed upon. (Note, however, that the methods listed above aren’t an inclusive list)
Alternative Method of Transportation
The employer seeking the Opinion Letter also asked whether an employee must be compensated for travel time if he or she chooses to forego travel by plane and instead wants to travel by automobile. To answer this question, the WHD cited a federal regulation that states that “if any employee is offered public transportation but requests permission to drive his or her car instead, the employer may count as hours worked either the time spent driving the car or the time he or she would have had to count as hours worked during working hours if the employee had used the public conveyance.”
Travel Time Between a Training Site and a Hotel
In addition, the employer asked whether an employee must be compensated for travel time to commute between a training site and the hotel where he or she spends the night. The WHD referenced 1996 and 1999 opinion letters that state: “Generally, the travel time from the hotel to the work site and back would be considered ordinary home-to-work travel, and, as such, need not be compensated.”
Scenarios 2 and 3: Travel in an Employee’s Normal Home Area
Scenarios 2 and 3 in the opinion letter largely deal with ordinary commutes to and from work. In Scenario 2, the hourly technicians travel from their homes to the office to get job itineraries before traveling to the locations of customers. Their commute time to and from home may vary, and they ordinarily use company vehicles. In Scenario 3, the technicians may “drive from home to multiple different customer locations on any given day.”
The WHD noted that work time that must be compensated generally doesn’t include time spent commuting between home and work, even when the employee works at different job sites. However, travel between job sites after arriving at work should be compensated by employers.
Use of a Company Vehicle
The WHD was also asked whether use of a company vehicle makes otherwise non-compensable travel time compensable. The WHD again noted that travel between job sites during the workday must be compensated. With respect to commuting time, however, the WHD stated that use of a company-provided vehicle doesn’t, alone, make an ordinary commute compensable — provided that “the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.”