The Fair Labor Standards Act (FLSA), the Portal-to-Portal Act and their implementing regulations require employers to pay employees for time spent working1. But is travel time compensable time for non-exempt employees? This question continues to plague employers, particularly employers in the construction industry who are routinely dealing with a host of travel time issues. Fortunately, the U.S. Department of Labor recently issued an opinion letter that provides some much-needed guidance on the question of whether the travel time of non-exempt foremen and laborers is compensable work time under the FLSA2.
The DOL’s November 3, 2020 opinion letter discusses three scenarios, all of which involve a fairly common arrangement: a non-exempt foreman is required to travel to the employer’s place of business to retrieve a company vehicle, drive the vehicle to the jobsite and then return the vehicle to the employer’s place of business. Sometimes the foreman is transporting a crew of workers who have met at the office in order to avoid having to drive separately to the jobsite. In other instances, the foreman may be transporting materials or equipment from the office to the jobsite. Company-provided transportation to and from a jobsite is often intended as a benefit to workers who are unable to drive or who do not otherwise have transportation, but this intended benefit can become a boondoggle if workers are not paid correctly.
The first scenario discussed in the opinion letter involves travel to and from a local jobsite, meaning a jobsite that is close to or within the same city as the employer’s principal place of business. Generally, the foreman’s trip from home to the employer’s place of business is an ordinary home-to-work commute that is not compensable. Being required to report to a central location by itself does not make travel from that location to the jobsite compensable3. But in these scenarios, the foreman is not merely required to report to the office—he is also required to pick up, drive and drop off the company truck. Travel time between the employer’s place of business and the jobsite is compensable worktime for the foreman because retrieving the truck in the morning, driving the truck to the jobsite and returning the truck in the afternoon are integral and indispensable to the principal activities that the foreman is employed to perform.
Importantly, the same may not be true for laborers who choose to meet at the employer’s place of business and ride with the foreman in the company vehicle to the jobsite4. Unless these workers are performing activities at the employer’s place of business that would be integral and indispensable to their principal activities such that they would start the clock on their work day (e.g., loading equipment or materials), then this is considered a normal commute between home and work, which is not compensable5. In other words, their choice to meet at the employer’s place of business and ride with the foreman does not necessarily transform their commute into compensable work time.
In the second scenario, the workers are away from home overnight for work at a remote jobsite. As in Scenario One, the foreman’s travel time to and from the employer’s place of business and the jobsite is compensable worktime. Laborers’ travel between a hotel and the jobsite is considered normal “home” to work travel, which is not compensable6. But the analysis is trickier for laborers who travel to and from the remote location at the beginning and end of the job.
If a laborer drives a personal vehicle to the remote jobsite, travel time is compensable if it cuts across normal work hours (even if the laborer is travelling on what would otherwise be a non-work day7). If the laborer is travelling as a passenger, whether travel time is compensable also depends upon the time of day he or she is travelling. If the laborer is riding to a remote jobsite as a passenger outside of normal working hours, travel time is not compensable8. But if the laborer is a passenger in a vehicle headed to a jobsite during normal working hours, that time is compensable, even if this travel is occurring on what would normally be a non-work day (the weekend, for example)9.
If the employer offers to transport laborers to the remote jobsite in the company truck, but the laborer chooses to drive his or her own vehicle, the employer has a choice to make. The employer has the option to count as compensable worktime either:
This enables the employer to control travel costs by offering public transportation to a remote jobsite on its preferred schedule.
Scenario Three also involves a remote jobsite but with a slight twist: the laborers choose to drive between the remote jobsite and their homes each day. While the laborers’ travel to and from the jobsite at the beginning and end of the job would be treated as in Scenario Two, their intervening drives home and back to the remote jobsite would not be compensable.
The DOL readily acknowledges that its travel time regulations cannot possibly address every conceivable situation in which an employee must travel for work. The opinion letter discusses only three scenarios—the facts of which could vary in any number of ways. But the principles set forth in the opinion letter can guide employers in determining whether or not travel time is working time. One key takeaway is that the analysis is different for foremen who are driving a company vehicle and laborers who are passengers, or who have their own transportation.
A second key takeaway is that whether travel time is compensable depends on when and how the employee travels. These overarching principles and the specific fact patterns discussed in the opinion letter should help employers ensure that their non-exempt employees are properly compensated for all hours worked and calculate whether employees are entitled to overtime pay.
Written by {{author.AuthorName}} - {{author.AuthorPosition}}, {{author.Company}} {{author.Company}} Contact Info: {{author.OfficePhone}} , {{author.EmailAddress}}
{{comment.Text}}