Over the years in different industries, there are times that, like Johnny Cash, I’ve felt like I’ve been everywhere, particularly commuting from one job site or location to another.
Yesterday, I outlined the general rules for non-exempt employee travel under the Fair Labor Standards Act (FLSA). Generally, any travel that is “all in a day’s work,” as well as any travel time during which the employee is actually working (including the “work” of driving!), must be counted as hours worked for both minimum wage and overtime 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.
The general rule about “ordinary commuting” is simple on its face: the time a non-exempt employee spends traveling from home to work and work to home is not considered hours worked. 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.” But what is an “ordinary” commute in the first place?
In 1996, Congress passed the Employee Commuting Flexibility Act (ECFA), which amended another amendment to the FLSA called the Portal-to-Portal Act, in an attempt to provide some guidance. The ECFA specifies 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):
- 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;”
- The use must be “subject to an agreement on the part of the employer and the employee or representative of such employee.”
#2 is easy, but Congress’s amendment is as clear as mud. What is a “normal commuting area” anyway? 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, and you have a written agreement or a demonstrable oral understanding, then the DOL and courts probably will find that travel time to the first job of the day and home from the last job of the day not compensable.
I have to use a lawyerly word like “probably” because some travel might be far enough outside of normal that it would require compensation. For instance, 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.”
Tomorrow, we’ll wrap up the travel series by looking at one special case: the “normal commuting area” for employees driving employer-provided vehicles.