The Fair Labor Standards Act (“FLSA”) is a statutory regime with teeth. Employers are wise to understand the ins and outs of the FLSA and how it demands that employers properly classify employees and compensable work time, deduct from pay, and record keeping.
This Freeman Law Insights blog addresses when a non-exempt employee must, under the FLSA, be paid for time spent in travel. If a state law provides greater benefit than the FLSA, the state law may control in a particular situation.
Cory’s 10 Commandments for Travel Time as Hours Worked (or Not) under the FLSA:
- General Rule. Normal travel from home to work and back is not worktime.
- General Rule Elaborated. Time spent in home-to-work travel by an employee in an employer-provided vehicle, or in activities performed by an employee that are incidental to the use of the vehicle for commuting, generally is not “hours worked” and, therefore, does not have to be paid. The general rule applies only if the travel is within the normal commuting area for the employer’s business. An exception is where an employee travels home from work and then is called back to work for an emergency matter; that time in travel is compensable.
- Travel During Work Hours. Time spent traveling during normal work hours is considered compensable work time.
- One-Day Assignment. Travel from home to work on special one-day assignment in another city is compensable. Normal deductions for meal periods.
- Travel is Principal Activity. Time spent by an employee in travel as part of the employee’s principal activity, such as travel from job site to job site during the workday, constitutes hours worked.
- Travel to Meet or to Gather Tools/Work Equipment. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the workplace is part of the day’s work and constitutes hours worked.
- Travel from Another Job Site After Normal Workday. If an employee normally finishes work on the premises at 5 p.m. and is sent to another job which the employee finishes at 8 p.m. and is required to return to the employer’s premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to the employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.
- Overnight Travel and the Passenger Exception. Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is worktime when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. However, time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile may be disregarded from hours worked.
- Mode of Transportation. If an employee is offered public transportation but requests permission to drive a personal car instead, the employer may count as hours worked either the time spent driving the car or the time the employee would have had to count as hours worked during working hours if the employee had used the public conveyance.
- Work While Traveling. Any work which an employee is required to perform while traveling must be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.
The above Cory’s 10 Commandments do not constitute, and should not be construed as legal advice, and every situation should be carefully evaluated for compliance with the FLSA and any applicable state law. But, the above information is a decent guide of how to remain within the guardrails established by the FLSA and an opportunity for the employer to issue-spot in order to honor those employees who must travel in order to keep the employer’s business going.
