In most circumstances, the FLSA requires employers to pay non-exempt employees for the time they spend traveling from one work site to another during their work day. This is not breaking news, but, as it is a topic that impacts a large number of employers, it is important for employers to understand the rules surrounding compensable travel time. The U.S. Department of Labor (“DOL”) issued an opinion letter earlier this year on the topic that helps clarify the travel time principles under the FLSA and the multiple DOL regulations that come into play on this issue. The DOL’s opinion letter FLSA2018-18, available at https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_01_FLSA.pdf, provides a straightforward guide to some simple rules to follow in this context.
The DOL’s opinion letter considered crane technicians who often travel from one customer location to another in the same day to inspect or repair cranes. This issue can arise in any number of industries, including health care related industries where therapists or home health aides travel from one appointment to another, often at the customers’ homes.
When to pay and when not to pay:
- Generally, employers do not have to pay for an employee’s regular commute from home to work at the beginning of the day, and from work to home at the end of the day. That is, any commute before the employee starts working for the day is not compensable, and the commute after work concludes for the day is not compensable, with few exceptions. This is true even if the employee does not report to a fixed worksite on a regular basis, i.e. the employee starts work on location with a customer each day.
- The primary exception occurs when an employee is traveling out of town and back home all in one day. In that case, an employer should count travel to the airport or train station and home therefrom as the regular commute, but the travel out of town and back into town is not part of the commute and must be compensated.
- Once the workday begins at any job site, travel between job sites is compensable. For example, with limited exceptions, travel from one home therapy appointment to the next is work time and must be compensated, and moreover must be counted as hours worked for minimum wage and overtime calculations. There are cases and substantial reported settlements of employer violations of this rule.
- This rule is usually unaffected by the type of vehicle used by the employee (an employer-owned vehicle or a personal vehicle used to travel from one worksite to the next).
While there are other rules for compensability of travel when the travel takes place overnight, the key to travel from one worksite to another during a single workday is that once the work begins, wherever that may be, the time traveling after the work begins must be paid. Only the regular commute travel after the work day is over, is unpaid. And, the fact that there may be an “industry standard” for not paying for such travel will not prevent liability for unpaid travel time in these circumstances.
This blog post focuses on requirements under federal law and guidance. Additional state law requirements may exist and should be considered.