Throwback Wednesday doesn’t quite have the same ring to it, but I’m going for it anyway. One of the best country music “work” songs goes back to my high school days and Tracy Lawrence’s 1991 Sticks and Stones album. “Runnin’ Behind” starts off with this lyric:
Work, work, work,
Day after day.
50 hour week, 40 hour pay.
No time to get over all this,
Yeah, I’m always runnin’,
But, I’m always runnin’ behind.
Looking back now as a wage and hour lawyer, I can only hope that Tracy (or the songwriters, Mark D. Sanders and Ed Hill) were salaried, exempt employees under the Fair Labor Standards Act (FLSA). One area where employers can find themselves inadvertently providing 40-hour pay for 50-hour work weeks is travel time. As I mentioned in yesterday’s post, employers have to resist the temptation to read Integrity Staffing too broadly when requiring work-related travel for non-exempt employees. This week, we’ll address the general rules applicable to non-exempt employee travel, as well as the rules for employee commutes and one special commuting situation.
General Rules for Non-Exempt Employee Travel
General Rule #1: Ordinary commuting is (generally) not compensable.
The time a non-exempt employee spends traveling from home to work and work to home is not considered hours worked…unless
General Rule #2: Work performed while traveling is considered hours worked.
If you require the employee to work during a commute, or any other travel, you run into an even more basic FLSA rule: you must pay employees for all work suffered or permitted.
General Rule #3: Sleep time is not work time.
Even if you require an employee to travel overnight, you never count sleep time as hours worked (this rule applies only to travel–there’s a different rule for employees on 24-hour shifts)
Rules for Same Day, In-Town Travel
Same Day, In-Town Travel Rule #1: Travel as part of an employee’s principal work activity is hours worked.
If an employee travels as part of their principal work activity during their workday, all of this time is considered hours worked for FLSA purposes. Most commonly, this travel is between employer locations or customer job sites. Unless it is part of the commute to and from work (see General Rule #1 above), it is compensable.
Same Day, In-Town Travel Rule #2: Commuting to an alternate job site is (generally) not compensable.
Changing an employee’s commute by asking him or her to report to an alternate job site is not generally compensable. The exception here is when the alternate job site is not within a reasonable proximity to the employee’s home, and the associated travel requires additional time, effort, or cost. In this case, the travel to the alternate job site could be compensable. The FLSA regulations and case law do not provide much concrete guidance on when a location is within a “reasonable proximity,” so I will give you a potential rule of thumb later this week.
Rule for Same Day, Out-of-Town Travel
Same Day, Out-of-Town Travel Rule #1: All travel to and from the other town/city as part of an employee’s principal work activity is considered hours worked, regardless of when the travel occurs during the day.
Unlike the same day, in-town travel, in this situation, the employer requires an employee who regular works at one fixed location in City A to travel to City B for a one-day assignment, returning home on the same day. All of this travel time is considered hours worked.
Same Day, Out-of-Town Travel Rule #2: An employer may deduct or otherwise not count time that the employee would normally spend commuting to their regular work site.
If the employee would normally spend 30 minutes commuting from home to the regular workplace and 30 minutes commuting back, you can deduct this hour from the travel time in Rule #1 above. Be careful to keep careful records of how and why you make any deduction. From an employee relations standpoint, absent a significant aggregate financial impact, consider foregoing this deduction.
Rules for Overnight Travel
Overnight Travel Rule #1: Travel for an overnight trip during the hours an employee would normally work is considered hours worked, regardless of the day (e.g., Saturday, Sunday, holiday).
The only quirk here is that it does not matter what day of the week the travel occurs. Even if the non-exempt employee would have had a day off that day (scheduled day off, weekend, holiday), travel time during overnight trips is compensable. For example, an employee who normally works 8 a.m. until 5 p.m. travels on an out of town, overnight trip on Sunday from 3 p.m. until 7 p.m., when the employee arrives at the destination. 2 hours from 3 p.m. until 5 p.m. are compensable. The time from 5 p.m. until 7 p.m. is not.
Overnight Travel Rule #2: An employer may deduct or otherwise not count time that the employee spends commuting to an airport, train, or bus station.
Akin to Same Day, Out-of-Town Travel Rule #2, you can deduct this “commuting” time to mass transit, but consider whether it makes sense to do so from an employee relations perspective.
Overnight Travel Rule #3: Time an employee spends actually driving a vehicle (or flying a plane, etc.) is considered work, and therefore compensable.
This should be self-explanatory, but employers who require (or permit) an employee to perform work of any type, even driving, must compensate the employee for the time.
Overnight Travel Rule #4: Time spent as a passenger of an airplane, train, boat, bus or automobile outside of regular working hours will not be considered hours worked.
The flipside of Rule #3 should also be self-explanatory. Keep in mind that Overnight Travel Rule #1 always applies.
Ultimately, these rules still have to be applied to the facts of your situation, so they should be considered guidelines, not something written in stone. Like any wage and hour issue, unpaid travel time can quickly lead to substantial liability for back wages and attorney’s fees to individual workers and in class actions. The compensability of travel time, like rounding or pre- and post-shift activities, is often highly subject to specific facts and even industry practice. Even if you are familiar with these rules, confirm how they apply to your business and whether what you think should happen matches what does happen in practice.