The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. These requirements involve a determination as to the number of hours an employee “works” each workweek. As explained below, the FLSA generally requires that compensable working time include any time that an employee is suffered or permitted to work. When an employee is traveling, a question often arises as to whether that time is considered compensable working time under the FLSA. FLSA regulations provide that, generally speaking, time spent on ordinary commutes is not compensable time, but travel time between worksites is compensable time. Other travel scenarios may or may not be compensable working time, depending on the circumstances.
Working Time is Time the Employee is Suffered or Permitted to Work
The FLSA defines “employ” as “includes to suffer or permit to work.” 29 U.S.C. § 203(g). FLSA regulations provide further guidance as what constitutes “work time,” for which minimum wages and overtime compensation (for work time over 40 hours per workweek) must be paid:
Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.
29 C.F.R. § 785.11. This rule “is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” 29 C.F.R. § 785.12.
With respect to travel time, as explained below, FLSA regulations provide that “the principles which apply in determining whether or not time spent in travel is working time depend upon the kind of travel involved.” 29 C.F.R. § 785.33.
Ordinary Home to Work Travel: Not Working Time
FLSA regulations make clear that ordinary commutes are generally not compensable working time:
An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.
Emergency Home to Work Travel Can Be Working Time
However, the regulations further provide that there may be circumstances in which “emergency” home to work travel is working time:
There may be instances when travel from home to work is overtime. For example, if an employee who has gone home after completing his day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer’s customers all time spent on such travel is working time.
29 C.F.R. § 785.36. The distinction here appears to turn on the “substantial distance” and emergency, extra-hours nature of such “emergency” travel. When an employee returns home after completing his regular shift, that travel is not working time. But if an emergency arises and the employee is then called back to work “to travel a substantial distance to perform an emergency job” for a customer, that additional “emergency” travel would be considered compensable working time.
The regulation, however, does not squarely address the question of whether emergency, after hours travel to the employee’s regular place of business is working time:
The Divisions are taking no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to his regular place of business to do a job is working time.
Home to Work Travel on a Special One-Day Assignment in Another City
Sometimes, an employer might send an employee to travel from home on a special one-day assignment in another city. The regulations provide that in this special scenario, the home to work travel is working time, but the employer may deduct from working time the time the employee typically spends on his ordinary commute to his regular place of business:
A problem arises when an employee who regularly works at a fixed location in one city is given a special 1–day work assignment in another city. … Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer’s benefit and at his special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the “principal” activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call (described in § 785.36), or like travel that is all in the day’s work (see § 785.38).
29 C.F.R. § 785.37. Thus, the special home-to-work travel to the other city is compensable working time. However, the regulations provide that the employer may deduct from that compensable time the time the employee normally spends on his commute to his regular work site:
All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to his regular work site, the travel between his home and the railroad depot may be deducted, it being in the “home-to-work” category. Also, of course, the usual meal time would be deductible.
Travel “All in a Day’s Work”: Travel Between Job Sites is Working Time
The FLSA’s “All in a Day’s Work” regulation further provides that travel between job sites during the work day is generally compensable working time:
Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. 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 work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his 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 his employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.
Travel Away From the Employee’s Home Community is Work When it Cuts Across the Regular Working Hours, Including on Non-Working Days
FLSA regulations provide that travel away from home is compensable working time when it occurs during regular working hours, even on days that are not regular working days (like weekends):
Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee’s workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted.
29 C.F.R. § 785.39. However, the regulation further provides that DOL does not consider as working time time spent on travel away from home “outside of regular working hours”:
As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
Calculation of Working Time When Employee is Offered Public Transportation But Chooses Private Transportation Instead: Employer’s Option
Sometimes, an employer may offer for an employee to travel by plane or train to a work location, but the employee chooses to drive instead. In this scenario, the regulations provide that the employer can choose to count as hours worked either the time the employee spends driving or the time the employer would have had to count as hours worked during working hours if the employee had used the public transportation:
If an employee is offered public transportation but requests permission to drive his car instead, the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during working hours if the employee had used the public conveyance.
Work Performed While Traveling is Work
Finally, the regulations make clear that any work an employee is required to perform while traveling is compensable working time:
Any work which an employee is required to perform while traveling must, of course, 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.
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