Travel time seems to be a constant vexation to employers. Recently, the Department of Labor issued Opinion Letter FLSA 2018-18 addressing several travel pay issues.
The Opinion Letter reiterated that travel to and from work, outside of the employee’s normal work day, is not compensable as travel time. Citing the Portal to Portal Act, the DOL stated as follows:
(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, and(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a).
But, let’s say that a non-exempt employee who normally works Monday through Friday 9:00 am to 5:00 pm is directed to attend a seminar that starts on Monday morning at 8:00 am at a location that is 300 miles away. The employee asks that she travel to the location the previous afternoon, stay at a hotel that night and drive from the hotel to the seminar site on Monday morning, returning home Monday night. How much of that time is compensable?
The FLSA regulations and Department of Labor interpretation state that “[t]ravel away from home is clearly work time when it cuts across the employee’s workday. The employee is simply substituting travel for other duties.” “…[c]ompensable time includes all time spent in such travel during the hours which correspond to [the employee’s] normal hours of work, including those hours on Saturday and Sunday which correspond to [the employee’s] normal working hours on other days of the week”. Thus, by way of example, the regulations state, “if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is work time on Saturday and Sunday as well as on the other days.”
Some employers might ask if a way around this exists. The answer is yes. The DOL also finds that this type of travel time is only compensable if the non-exempt employee is actually driving herself to the seminar location on Sunday, but it is not work time if the non-exempt employee is a passenger during the same hours and going to the same location. The FLSA regulations also state that the DOL “will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.” So, in our example, if the non-exempt employee drives to the seminar location on Sunday, it is compensable time, but if she takes the train, bus, airplane, or is a passenger in a car driven by her supervisor, who is also attending the seminar, it is not compensable time.
Now, what if, in our scenario, the employer suggests that the employee take Amtrak and they will pay her fare, as well as an Uber to and from the train station and the seminar, but the employee declines and says she prefers to drive? In that case, the DOL finds that “if any employee is offered public transportation but requests permission to drive his [or her] car instead, the employer may count as hours worked either the time spent driving the car or the time he [or she] would have had to count as hours worked during working hours if the employee had used the public conveyance.”
Finally, what about the time it takes the employee to drive from the hotel to the seminar and then home that evening? Again, since the seminar is the work site for that employee on that day, the employee is not entitled to be paid for the time spent driving from the hotel to the seminar. Similarly, the employer is only obligated to pay travel time home that evening which coincides with the employee’s normal work hours. If the seminar ends at 3:00 pm and the employee begins her trip home at 3:15, she will be entitled to pay until 5:00 pm, when her regular workday ends.
Travel time, like other pay issues can be tricky, and sometimes counterintuitive. It is always wise to check with your labor and employment counsel before following your gut instincts on these issues.