As COVID-19 restrictions have continued to loosen or be lifted altogether, employees have gradually resumed working in the office—and traveling away from it for work-related reasons.  When it comes to travel time in the employment context, the answer to the question, “Do I need to pay for that?” often has no straightforward answer.  Rather, under the Fair Labor Standards Act (“FLSA”) and U.S. Department of Labor (“DOL”) regulations, whether time an employee spends traveling is compensable depends on the type of travel.  In this month’s Time Is Money segment, we provide a refresher on when and how employers must pay employees for travel time.

Ordinary Home-to-Work Travel

Time employees spend during their normal commute—i.e., traveling from home to their regular workplace before the beginning of the workday and from the workplace back home at the end of the workday—is not considered work time, and therefore, is not compensable.  See 29 U.S.C. § 254(a)(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” are not compensable activities); 29 C.F.R. § 785.35 (“Normal travel from home to work is not worktime.”).

This general rule applies regardless of whether the employee works at a fixed location or at different job sites.  However, if a particular work site is significantly further, and the commute to that location significantly longer, than the employee’s typical home-to work commute (e.g., 5 miles versus 50 miles), the employer should consider paying for that longer commute.

Same Day Out-of-Town Travel

If an employer requires an employee who regularly works at a fixed location in one city to travel for a one-day assignment in another city, the travel time to and from that out-of-town destination counts as time worked and must be paid, even if it occurs before and after the employee’s regular workday.  This is because, unlike an ordinary home-to-work commute, such travel is performed for the employer’s benefit to meet the needs of a particular and unusual assignment, and therefore, it qualifies as an integral part of the “principal” activity that the employee was hired to perform.  See 29 C.F.R. § 785.37.

However, the employer may deduct the time the employee would normally spend commuting to the regular work site because, but for the special assignment, the employee would have had to report to the regular work site.

Travel That Is “All in a Day’s Work”

An employee who travels from job site to job site throughout the course of the workday generally must be paid for that time.  As an example, if an employee must report at a meeting place to receive instructions or pick up tools and then travel to a job site, the travel from the meeting place to the job site is “part of the day’s work” and counts as hours worked.  See 29 C.F.R. § 785.38.

If the employee must return to the employer’s premises after the last job of the day, that travel time also counts as hours worked.  However, if the employee goes straight home from the last job site instead of returning to the employer’s premises, it becomes a normal home-to-work commute, which is not compensable.

Overnight Out-of-Town Travel

An employee’s travel away from home involving an overnight stay involves a more nuanced analysis to determine whether, and how much, of that travel time is compensable.  In this scenario, the DOL takes the position that any travel time that occurs during the employee’s “normal working hours” on any day of the week counts as time worked—irrespective of whether it occurs on a regular workday (e.g., Monday through Friday) or on a non-workday (e.g., Saturday or Sunday).  See 29 C.F.R. § 785.39.  This is because the employee simply substitutes travel for other duties.

Conversely, the DOL does not consider as work time any time an employee spends traveling as a passenger outside of the employee’s normal working hours.  An important exception to this general rule is where an employee performs actual work while traveling, such as reading documents or sending business emails while on a train or bus, or where the employee’s principal work activity is to drive a truck, bus, or other vehicle.  In the latter example, traveling is the work the employee has been hired to perform and must be paid.  See 29 C.F.R. § 785.41.

This analysis is more difficult to apply where the employee has no normal working hours.  The DOL has issued guidance outlining three permissible methods employers may use to reasonably ascertain an employee’s normal work hours for purposes of determining compensable travel time:

• If the records of an employee’s time during the most recent month reveal typical work hours, the employer may consider those as the normal hours, unless some subsequent material change in circumstances indicates the normal work hours have changed;
• If the records do not reveal any typical working hours, the employer may choose the average start and end times for the employee’s workdays; or
• If an employee truly has no normal working hours, the employer and employee may agree on a reasonable amount of time or timeframe in which travel outside of the employee’s home community is compensable.

Once the employee arrives at his or her out-of-town destination for a business trip involving an overnight stay, the analysis essentially reverts to that as if the employee were in his or her home community.  That is, time spent commuting from the hotel to the work site before the regular workday, and from the work site back to the hotel at the end of the workday, is like a normal commute and therefore need not be paid.  And if the employee is completely relieved from duty and performs no actual work while at the hotel, the employer likely may consider that non-compensable “off duty” time.  See 29 C.F.R. § 785.16.  Of course, an employer must pay the employee for any actual work he or she performs while traveling.

Other Considerations

The fact that certain travel time is compensable under the FLSA carries with it important consequences.  Critically, employers must implement a method for tracking travel time.  Having an accurate record of such hours enables the employer to properly pay an employee who was engaged in compensable travel.  And because compensable travel time constitutes “hours worked,” it counts towards the 40-hour per week threshold for overtime under the FLSA.

Lastly, as with all wage and hour issues, it is important to confirm whether the state or locality within which your traveling employees work does not have different travel pay requirements than the FLSA, as certain state and local laws may have more demanding travel pay requirements.

[View source.]