Heigh-Ho, Heigh-Ho, It's Off to a Non-Compensable Commute We Go

by Franczek Radelet P.C.
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Heigh Ho.jpgIf only “Heigh-Ho” from Disney’s Snow White had been written sometime in 1938, rather than 1937, maybe my FLSA-influenced version would have had a chance. O.k., on second thought, probably not. But today, one of the more convoluted areas of the FLSA relates to the compensability of travel time. In general, travel time for non-exempt employees that is “all in a day’s work,” as well as any travel time during which the employee is actually performing work (including the “work” of driving!), must be counted as hours worked for both minimum wage and overtime computation purposes. Particularly in service industries, like telecommunications, Internet service, home repair, and utilities, that involve travel across a service area by technicians, the rules on whether to count travel time as “working time” will depend on both the kind of travel involved and when it occurs.

A couple of years ago, we addressed some general rules about travel time, but one area still troubles many employers: the “normal” commute.

General rule: Ordinary Home to Work/Work to Home Travel

In 1996, Congress passed the Employee Commuting Flexibility Act, which amended the Portal-to-Portal Act to specify that “the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered” compensable if two conditions are met. 29 U.S.C. § 254(a). First, the use of the vehicle and incidental activities must be “for travel that is within the normal commuting area for the employer's business or establishment;” and second, the use must be “subject to an agreement on the part of the employer and the employee or representative of such employee.”

Normal commuting travel from home to work is not “working time” and, therefore, does not have to be paid. Under the FLSA regulations, “an employee who travels from home before his regular work day and returns to his home at the end of the work day 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.”  Courts have looked at this as a subjective standard, defined by what is “usual” within the confines of a particular employment relationship. If extensive travel is a contemplated, normal occurrence in the employment relationship you have with your employees, then travel time to the first job of the day and home from the last job of the day is likely not compensable.

I say “likely” because some travel might be far enough outside of normal that it would require compensation. In an April 3, 1995 Wage & Hour Division Opinion Letter, the DOL observed that an employee’s travel time between home and the first work site of the day, even in the employer's vehicle, would not be compensable if, among other things, the “work sites are within the normal commuting area of the employer’s establishment.” Or, as the Tenth Circuit wrote in 1999, “[w]hile it may be more awkward or inconvenient to arrange for transportation to and from work where the employees…may begin or end their work day at diverse locations, such awkwardness or inconvenience does not change an otherwise non-compensable commute into compensable work time.”

On our next blog post, we will look at this issue in more depth with the special case: determining the “normal commuting area” for employees driving employer-provided vehicles.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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