Non-exempt/hourly employees that travel on behalf of their employer may incur hours worked and must be paid for travel time. Last week, the U.S. Third Circuit Court of Appeals rendered a decision finding home health aides should have been paid for time traveling between client homes. This is reported to cost them $7million.
Employers are advised to look at the purpose or reason for travel by the non-exempt employee and the relationship between the employee’s work and the travel necessitated. If the purpose of the travel is important to the employer’s business, it is more likely that it must be considered compensable time worked. Douglas Lipsky of Lipsky Lowe LLP states, “It is important to look at who benefits most from the travel – the worker or the company.”
The decision by the Third Circuit last week looked at when the workday starts and when the travel occurred. Local attorney and occasional ASE conference speaker Robert Boonin of Dykema Gossett PLLC states that once the workday starts, all travel during that day is compensable. He stated, “It’s not pre-shift or post-shift work. No. The shift has already started. Any work that occurs, including travel, once the principal activity is performed until that last principal activity is performed that day is, in most cases, compensable.”
For out-of-town work, travel time is compensable except when the travel is outside of normal work hours. To make compliance easy, direct employees to travel during their normal work hours.
Work performed while travelling is hours worked even if just riding along. However, working while traveling outside of normal work hours is not normally compensable. Be warned, off-hours travel that includes doing necessary work activities should be considered hours worked, even just to be on the safe side of wage and hour compliance. For example, writing down notes from the day’s work.
Another concern to be aware of is commuting and how it is defined. Commutes before any work starts at the beginning of the workday or after work ceases for the day is normally not compensable.
What about situations where remote or hybrid employees must travel to the office? Surprisingly, this area of wage and hour law is still evolving. If the reasonableness of a remote worker’s commute is in question—such as when an employee is required to come into the office only occasionally, perhaps quarterly, and the travel time exceeds the typical commute in that area—it may be considered compensable if challenged. This is one of the issues addressed in the Third Circuit’s opinion. In today’s hybrid and remote work environment, employers may need to reconsider their home-to-work travel policies. If an employee is required to travel from an excessive distance, that time could be deemed compensable, as it falls outside a reasonable commuting range.
For hybrid employees who commute to the office a few times a week or remote workers who regularly or consistently travel to the office, their commute is more likely to be considered a standard home-to-work commute. As a result, this travel time would generally not be compensable.
Human Resource professionals should look across their organizations to determine what travel is necessitated by hourly/non-exempt employees to make sure the organization is in compliance with wage and hour travel regulations.
By Michael Burns, courtesy of SBAM-approved partner, ASE.
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