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Paul Zimmerman

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How Travel Time Factors into Payday: the Department of Labor Weighs In

So, you have non-exempt employees – ones without fixed daily schedules, yet entitled to overtime pay pursuant to the Fair Labor Standards Act – who are required to travel for work. What portion of their time on the road will their paychecks reflect? This has been a sticky issue for employers and hourly employees. Thankfully, the Wage and Hour Division (WHD) of the Department of Labor has provided guidance.

In a recently issued opinion, the WHD concluded that travel time characterized as work time is subject to both the minimum wage and overtime pay requirements of the FLSA. That being said, such a characterization is dependent upon the type of travel at issue. Toward that end, the WHD’s opinion confirms all of the following:

(1) Travel from a hotel to a job site is normal, non-compensable commute time (likewise, travel from an employee’s home to a job site is non-compensable commute time, even if the commute is by means of a company-provided vehicle);

(2) Travel from a job site to another job site during the workday is work time that must be compensated; and

(3) Time an employee spends traveling while on an overnight stay away from his or her home is compensable only if such time “cuts across the employee’s regular workday.”

That all seems pretty straightforward, but as for the latter, what happens when the employee has no “regular workday”? This is where the WHD’s guidance proves to be quite handy, as it describes three methods an employer can use to determine when travel time is compensable under such a circumstance.

First, the employer can review the employee’s time records for the most recent month of employment and, if those records reflect typical working hours, they can be used to approximate “regular work hours” for purposes of travel time. Next, when the employee’s time records do not reveal a pattern of hours normally worked, the employer can “choose the average start and end times for the employee’s workdays.” Finally, in the rare case in which employees truly have no normal work hours, the employer and employee can agree to a reasonable amount of time during which travel is compensable.

Bottom line for employers: so long as you properly utilize one of these three methods to calculate compensable travel time, the WHD will not find you in violation of any wage and hour laws for failing to pay employees for time spent outside the “regular workday.”

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.