In the second installment of this “employee travel” series yesterday, I outlined the somewhat nebulous standard of a “normal” commute under the Employee Commuting Flexibility Act (ECFA) amendment to the Fair Labor Standards Act (EFCA). In particular, Congress passed ECFA in large part to clarify when employees who use employer-provided vehicles would be owed wages, a topic the Clinton administration DOL had been of two minds on, issuing two opposing opinion letters in 1994 and 1995. ECFA made commuting in a company car or other employer-provided vehicle non-compensable only if the use of the employer’s vehicle was (1) “for travel that is within the normal commuting area for the employer’s business or establishment;” and (2) “subject to an agreement on the part of the employer and the employee or representative of such employee.” 29 U.S.C. § 254(a). Post-EFCA DOL Opinion Letters confirm this interpretation. For instance, in 1999, the DOL stated that a home-based employee traveling in a company van would not need to be compensated for travel from home to a work site unless “the time involved is extraordinary.” The DOL reiterated this stance in 2011.
That leaves us with one unanswered question from yesterday: what is a normal commuting area? For that matter, what did the DOL mean when it referred to “extraordinary” time? The only rule of thumb that I can provide is that the DOL has said a one-hour commute is not compensable, at least so far. The DOL has not been clear about longer commutes, though, and the court cases are generally all over the map. Courts have held that a “normal commute” could be defined by distance or time, or both, and sometimes extended non-compensable commutes to three or four hours in very specific factual situations. So is there a particular distance that is “safe”? A maximum time? Other than this vague one-hour guideline from a DOL opinion, no.
Upshot for Employers
Obviously, if your business or industry depends on employees traveling in company cars, vans, or work trucks to various customer or company sites in a defined service area, you might want more concrete guidance than this. While the DOL has not offered any detailed guidance, another federal agency has. The Office of Personnel Management (OPM) maintains very detailed information about what the federal government considers a “normal commuting area” for federal employees in duty stations around the country. 5 C.F.R. § 550.112(j), 551.422(d). OPM’s regulations for non-exempt federal employees require that “[w]hen an employee travels directly from home to a temporary duty location outside the limits of his or her official duty station, the time the employee would have spent in normal home to work travel shall be deducted from hours of work.” 5 C.F.R. §422(b).
For instance, I have several clients in far southern Illinois. A federal employee based in Greenville, Illinois has a duty station that encompasses the cities of O’Fallon, Fairview Heights, Collinsville, as well as the entirety of Bond, Calhoun, Clinton, Jersey, Macoupin, Madison, Monroe and St. Clair Counties. As a federal employee, any travel from home to a job site within those cities and counties—no matter how long it may take—would not be compensable time. Any travel outside of those cities and counties, again regardless of the length of the commute, would be compensable. As we discussed earlier this week, you still can subtract the normal commute from this time. The DOL has never officially blessed this approach, but it would give you solid grounds for defending a travel time-focused audit or a class action lawsuit. It helps if you aren’t subtracting the normal commuting time, too. Goodwill goes a long way with auditors, in my experience.
If your employees are routinely driving more than one hour to their first job site or more than one hour home from their last job site, or are driving to job sites outside of your normal service area, then feel free to reach out to discuss your specific situation and industry. Enjoy the weekend!