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DOL Sheds Light on When Employers Must Pay for Travel Time

December 02, 2020

The Department of Labor’s Wage and Hour Division (WHD) analyzed three scenarios in its recent opinion letter to help employers decide when nonexempt employees must be paid for travel time.  

Under the Fair Labor Standards Act, employees do not have to be paid for their regular commute to and from work. This is generally true whether an employee works at a fixed location or at different job sites. However, when an employee must report at a meeting place to receive instructions, pick up tools, or otherwise perform other work there, the travel time between the meeting place and subsequent job site is part of the day’s work and counts as hours worked. Travel to another city on a special one-day assignment also counts as hours worked. However, the employer may deduct the time the employee would have used to travel to their normal work site.

Whether an employee must be paid for travel that keeps an employee away from home overnight (travel away from home) depends on when and how the employee travels. Travel away from home that cuts across an employee’s normal work hours must be paid for, even if the employee travels on what would normally be a nonwork day. Travel away from home that is outside of the employee’s normal work hours, however, does not have to be paid for, regardless of whether the travel occurs on a workday or nonwork day. If an employer offers public transportation to an employee but the employee chooses to drive his own vehicle, the employer may count as hours worked either the time the employee spent driving or the time the employer would have had to count if the employee had used the transportation offered.

In the opinion letter, the WHD looked at three scenarios. In each scenario, the foremen were required to travel to the employer’s place of business to retrieve a company truck. The foremen drove the truck to the job site, where it was used to transport tools and materials around the job site, and then returned it to the employer’s place of business.

1. Scenario One: Local job sites 

Foreman: A foreman travels to a local job site from the employer’s main place of business.

Laborers: Laborers may choose to drive directly to the job site or drive to the employer’s main place of business and ride with the foreman to the job site.

Does the Employee Need to be Paid?

Foreman: The foreman must be paid for travel time between the employer’s main place of business and the job site.

Laborers: The laborers do not have to be paid. Travel time to and from a local job site is normal commuting. Their choice to meet at the employer’s main place of business and ride with the foreman does not transform their commute into hours worked.

2. Scenario Two: Remote job sites

Foreman: A foreman travels to a remote job site that is 1 ½ to 4 hours away from the employer’s main place of business.

Laborers: Laborers are to drive their personal vehicle to and from the remote job site at the beginning and end of the job. Some choose to drive to the employer’s main place of business and ride with the foreman to the remote job site. The laborers stay overnight at a hotel paid for by the employer.

Does the Employee Need to be Paid? 

Foreman: The foreman must be paid for travel time between the employer’s main place of business and the job site.

Laborers: Laborers who drive their personal vehicles to the job site at the beginning of the job and to their homes at the end of the job must be paid for such time spent driving to the extent it cuts across their normal work hours, even if they are traveling on what would otherwise be a nonwork day. The same is true if the laborers choose to meet the foreman at the employer’s main place of business and ride with the foreman to the job site.

However, if the employer offers to transport the laborers to the remote job site in a company truck and a laborer chooses to drive his own vehicle, the employer has the option  to pay for either the time the laborer spends driving to the remote job site or for the time that would have accrued during travel in the truck.

Once at the job site, the laborer does not have to be paid for travel time between the hotel and job site since it is considered normal commuting.

3. Scenario Three: Employees commute to remote job site 

Foreman: The facts are the same as Scenario Two.

Laborers: The facts are the same as Scenario Two, but the laborers choose to travel between the remote job site and their homes each day, rather than stay at the hotel.

Does the Employee Need to be Paid?

Foreman: The foreman must be paid for travel time between the employer’s main place of business and the job site.

Laborers: The laborers’ travel to and from the job site at the beginning and end of the job would be treated the same as in Scenario Two. They must be paid for their travel time to the extent it cuts across their normal work hours. However, the laborers do not have to be paid for the intervening drives home and back to the remote job site.

The WHD noted that its travel regulations do not claim to address every possible situation in which an employee must travel for work. Please contact Andrea Paris or any member of Phelps’s Labor and Employment team if you have questions or need advice and guidance.