When is travel time work time under FLSA?
April 20, 2018
By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
Calculating time worked for non-exempt employees who travel for their job is a challenge for many employers. On April 12, the U.S. Department of Labor Wage and Hour Division issued an opinion letter that tackles this question.
The company’s situation is as follows: The company generally repairs, inspects, and tests cranes. The company’s hourly technicians do not work at a fixed location, but rather work at varying customer locations each day. The technicians have no fixed daily schedule and often work between 8 and 12 hours per day servicing cranes. They may, at times, work up to 16 hours per day depending on the condition of the crane, the availability of parts, and other variables. A technician may need to stay in a hotel overnight and return in the morning to complete the job.
The company generally assumes a start time of 7:00 a.m. for the technicians, although service calls occasionally require technicians to arrive at work earlier than 7:00 a.m. When there are no cranes to service, technicians will generally perform routine maintenance and repair work at refineries from 7:00 a.m. to 3:30 p.m. On occasion, the technicians travel out of town for training courses.
The company provides its technicians with vehicles, which employees may use for both work and personal purposes. The company covers all fuel and maintenance costs for the vehicles.
The question posed to Wage and Hour has three scenarios. First, an hourly technician travels by plane from home state to New Orleans on a Sunday for a training class beginning at 8:00 a.m. on Monday at the corporate office. The class generally lasts Monday through Friday, with travel home on Friday after class is over, or, occasionally, on Saturday when Friday flights are not available.
Second, an hourly technician travels from home to his or her home office to get a job itinerary and then travels to the customer location. The travel time from home to office varies depending on where the technician lives and can range from 15 minutes to an hour or more. All of this travel is in an assigned company vehicle.
Third, hourly technicians drive from home to multiple customer locations on any given day.
Wage and Hour started by discussing that the Portal-to-Portal Act provides that employers do not need to compensate employees for: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which [an] employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
With respect to scenario one, when technicians take a flight on Sunday for a training that begins on Monday at 8:00 a.m. and return home on Friday after the training concludes, time worked “is clearly worktime when it cuts across the employee’s [regular] workday.” In other words, if the employee traveled on Saturday during normal work hours 7:00 a.m. to 3:30 p.m., he would have to compensated for that travel time.
Travel from the hotel to the training site and back again does not count as time worked, “generally, the travel time from the hotel to the work site and back would be considered ordinary home-to-work travel, and, as such, need not be compensated.”
Further, if the employee drove instead of flying, for example, Wage and Hour stated that “if any employee is offered public transportation but requests permission to drive his [or her] car instead, the employer may count as hours worked either the time spent driving the car or the time he [or she] would have had to count as hours worked during working hours if the employee had used the public conveyance (flying).”
With respect to scenarios two and three, travel to work from home and work to home, regardless of which site they are at, is non-compensable time. However, time traveled during work hours between sites is considered work time. Moreover, the use of a company vehicle for travel does not, alone, make an ordinary commute compensable, provided that “the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.” There does not need to be a written agreement, but it can be determined by company and/or industry practice.