The Fair Labor Standards Act (FLSA) establishes the minimum wage and overtime pay requirements for non-exempt employees. Non-exempt employees are employees who are not paid on a salary basis and who do not meet the requirements of the administrative, executive, or professional exceptions to the FLSA. Non-exempt employees must be paid for all hours worked. For every hour worked over forty hours, employees must be paid at time and a half of their regular hourly rate. Typically, "hours worked" are the hours such non-exempt employees work at a jobsite or office. However, hours worked can also include travel time, depending on the circumstances.
The time spent traveling to and from work are not compensable hours worked under the FLSA. This is true whether the employee works at a fixed location or at different job sites. If, however, the employee is required to report to a meeting place where he is to pick up materials, equipment, or other employees, and/or to receive instructions before traveling to the actual jobsite, time is compensable once the employee reaches the meeting place. For example, a field technician who is required to report to a central office to receive his daily assignments and who also returns to that office every evening must be paid for all travel time logged from the point at which the technician leaves the central office in the morning, until he leaves the office for home in the evening.
If an employee has the option to report to the meeting place to receive a ride, prior to going to the actual jobsite, the time spent traveling from the meeting place is not compensable. However, the employee must not perform any work when he reaches the meeting place. If the employee loads materials or receives instructions at the meeting place, the time is considered compensable. Time spent by the driver delivering passengers and/or materials to the jobsite is compensable.
Additionally, an employee must be paid for travel time in between jobsites during the work day. For example, a technician leaves the shop and arrives at a home to perform work, finishes his work and then travels to another home to perform work. An employer must pay the technician for the time that it takes him to get to the second jobsite.
Also, if an employee normally travels to a fixed location, but is required to travel to another location that is farther than the fixed location, the employee must be compensated for the travel time that is greater than his normal commute. Take, for example, an employee that is required to travel to a remote location for a single day seminar. The time the employee spends traveling to the seminar is compensable, minus what the employee’s normal commute time would be. Therefore, if the employee normally takes a half hour to get to work, and the seminar is an hour from his home, the employee must be paid for a half hour to the seminar and a half hour for the ride home.
If travel keeps an employee away from home overnight, travel time becomes work time when it cuts across an employee’s typical work day. Work time does not include time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus or automobile. Any work, however, which an employee is required to perform while traveling must be counted as hours worked. An employee who drives a truck, bus, or other automobile, or who is required to ride therein as an assistant or helper, is working while driving or riding, except during bona fide meal periods. According to a Department of Labor (DOL) wage-hour opinion letter issued on September 21, 2004, travel between an employee’s home and an out-of-town jobsite that the employee undertakes for his own personal convenience, i.e., voluntarily, is not compensable.
Travel time that is compensable should be paid at the employee’s regular rate of pay; however, it is permissible to have a wage agreement whereby employees are paid at a lower rate (at least minimum wage) for compensable travel time and other types of non-productive work time, as per a DOL administrative opinion letter dated January 22, 1999. However, any such agreement should be clearly expressed in a written wage agreement signed by the employee, and the time so distinguished must be carefully and exactly recorded. Furthermore, if such work results in overtime hours, the overtime pay must be calculated according to the weighted average method of computing overtime pay. Due to the complexity of the overtime calculation method necessary and the recordkeeping involved, it is always recommended that you consult counsel should this issue arise.
Please feel free to contact our experienced employment attorneys, Ryan Neumeyer or Lynn Schonberg, with any questions or concerns regarding travel time or any other wage and hour issue.