Pay for Travel Time Under the FLSA comin’-and-goin’

The Fair Labor Standards Act (FLSA) establishes minimum wage and overtime pay requirements for non-exempt employees. (Non-exempt employees are those who are (a) not paid on a salary basis, and/or (b) not employed in an executive, administrative, professional or outside sales capacity.) The FLSA requires employers to pay non-exempt employees the minimum wage for all hours worked and to pay one and one-half times the regular rate of pay for all hours worked over forty in any work week. Generally speaking, travel time for non-exempt employees that is “all in a day’s work” and travel time during which the employee is performing work, including the “work” of driving, must be counted as hours worked for both minimum wage and overtime computation purposes. Following are the gritty details of travel time pay under the often confusing and confounding Department of Labor rules. Whether you count travel time as “working time” depends on both the kind of travel involved and when it occurs.

Note: The FLSA establishes the minimum pay requirements. Competitive markets in the health care field may require some of you to pay more than these minimums required under the FLSA.

1. Ordinary Home to Work (29 C.F.R. § 785.35)

Generally, normal commuting travel from home to work is not work time and, therefore, does not have to be paid. According to 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.”

2. Emergency Home to Work (29 C.F.R. § 785.36)

During emergency situations, travel from home to work is work time. For example, an employee who has already gone home after work subsequently gets called out at again that night due to a consumer emergency. All that travel time is working time that must be paid.

3. Special One-Day Assignment in Another City, Home to Work (29 C.F.R. § 785.37)

You must pay a non-exempt employee for all time spent traveling to a seminar, training session, or other work assignment that lasts for a day. You also must pay for all time spent at the seminar, training session, or working. The employee is considered to be on a special assignment performed for the employer’s benefit.

For example, if a non-exempt aide travels one hour to a training, attends the training for eight hours, and then drives home for one hour, s/he will be entitled to pay for the eight hours at the training and the two hours of travel time. However, you may deduct from the total working time the employee’s “normal” commute time and any meal period not spent performing work or in the training session.

4. Travel That’s All in a Day’s Work (29 C.F.R. § 785.38)

All time an employee spends traveling as part of his or her principal work activity, such as travel from job site to job site during the workday, must be paid as hours worked. For example, if an employee is required to report at your office first to receive instructions or pick up certain materials for work, the travel from the office to the assigned work site also counts as hours worked.

5. Overnight Travel Away from Home (29 C.F.R. § 785.39)

If a non-exempt employee travels to a training session or work assignment, traveling the day before the session or work actually begins, only the travel time that cuts across (overlaps) the employee’s regular workday must be paid. For example, if an LVN normally works from 6 a.m. to 2 p.m., and leaves for an out-of-town training session at 1 p.m. and arrives at 4 p.m., you are only required to pay for one hour of travel time.

Note that overnight travel time on non-working days is considered work time if conducted during the employee’s normal work hours. For example, if the same employee travels on a regular day off, perhaps Sunday, you must pay for any travel time between 6 a.m. and 2 p.m. Again, you may deduct normal meal periods from the travel time, as long as the employee does not perform work during the meal period.

The DOL has created some disparities in how the out-of-town travel is compensated. Employees traveling on the same day of the assignment are paid for all the time spent traveling. By contrast, employees traveling the day before the work assignment are paid only for the travel time that cuts across their normal workday.

6. Work Performed While Traveling (29 C.F.R. § 785.41)

Of course, travel time during nonworking hours may be considered compensable work time if the employee actually performs work while traveling.

7. Transportation Choices Matter (29 C.F.R. § 785.40)

The Department of Labor does not treat as compensable time spent traveling away from home outside regular working hours if the worker is a passenger on an airplane, train, boat, bus or in an automobile. Even more oddly, you can arrange for the employee to travel outside normal working time. Thus, a non-exempt employee whose regular shift is 9:00 a.m. to 5:00 p.m., Monday through Friday, who is required to travel by bus on Sunday night in order to be at an out-of-town meeting on Monday morning, he/she does not have to be paid for travel time.

If an employee elects to drive to an out-of-town assignment instead of using offered public transportation, the employer has the option to consider as hours worked either the actual time spent by the employee in driving or the time that would have been counted as hours worked had the employee used public transportation. If, on the other hand, a non-exempt employee must drive and no alternative public transportation is offered, all driving time must be considered hours worked and must be compensated at either the regular or overtime rate because the act of driving is considered work that is required by you.

The Home Health Aide Illustration

By way of example, a home health aide who works from 8:00 a.m. to 10:00 a.m., goes home, and then returns to work for a 3:00 p.m. to 11:00 p.m. shift.

Are the hours between shifts (10:00 a.m. to 3:00 p.m.) compensable time? As the aide is permitted to leave the worksite and go home, the only remaining question in this case is whether the employee is considered “on duty” between the end of the first shift and the beginning of the second. The terms “on duty” and “off duty” have been defined extensively under federal law. To determine whether an employee who is free to leave the worksite between shifts is on or off duty, the U.S. Department of Labor will consider the following factors to determine the employee’s duty status. Generally, if: (1) the aide is completely relieved of all work-related duties; (2) the aide knows in advance that s/he will have time off between shifts; (3) the time off is long enough for the aide to effectively use the time as s/he wishes; and (4) the employee does not have to return to work until a definite, specified time, the aide can be considered off duty and the time is not compensable working time. The above scenario appears to meet these criteria. Each situation must always be evaluated on a case-by-case basis. There may be situations where the period of inactivity is too unpredictable, or is of such short duration, that an employee is prevented from effectively using the time for his/her own purposes and, therefore, the employee remains “on duty.”

Is the travel time compensable time? Assuming the aide is off duty between shifts, then travel to and from the interim worksites is not “working time” and not compensable travel time because the aide is not traveling from one place to another at the direction of the employer. Therefore, in the above scenario, the travel time from home to work at 8:00 a.m., from work to home (or anywhere else the employee chooses to go) at 10:00 a.m., from home to work at 3:00 p.m., and from work to home at 11:00 p.m. is not compensable time.

There’s nothing intuitive about the wage and hour laws. Make sure your pay practices meet the minimum standards, and call you legal counsel if you’re ever confronted with a questionable scenario or employee complaints.