Determining the circumstances in which “travel time” must be paid to non-exempt employees is often a vexing issue when employees work at customer locations rather than a fixed worksite. A recent Department of Labor Wage and Hour Division opinion letter sheds light on some of the difficult questions that arise with respect to such employees. See https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_01_FLSA.pdf.
The opinion letter tackles the following specific issues:
What time is compensable when a non-exempt employee travels to or from company-mandated training, away from the employee’s home community?
- The opinion letter confirms the general rule that travel time that cuts across the employee’s regular workday must be compensated, and travel time outside of the regular workday does not have to be compensated (unless work is done during the travel itself). But what happens when the employee does not work a set shift? In that case, says the DOL, the employer has several options for determining the regular work schedule for purposes of travel time. They include:
- Review the employee’s time records for the most recent month of regular employment and see if there is a pattern that reveals regular work hours.
- If no regular hours are revealed through the above method, choose the average start and end times for the workdays.
- If the above option still does not reasonably identify regular work hours, the employer and employee may negotiate and ultimately agree to a reasonable amount of time or timeframe in which travel outside of the home community is compensable.
- In addition to the above options, other “reasonable” methods for determining regular work hours are permissible.
- What time counts if the employee forgoes the employer’s offer of plane travel and chooses to drive a car to the training instead?
- In this situation, the employer may count as hours worked either the time spent driving or the time that would have counted as hours worked had the employee had taken the plane flight.
- Does the employer have to pay for travel time between the training site and a hotel?
- That time is considered ordinary home-to-work travel and is not compensable.
What is compensable when a non-exempt employee travels to a home office to get a job itinerary and then to the customer’s location?
- The portion of the trip from home to the home office is not compensable unless work is performed while traveling. Per a previous opinion letter, a potential exception to this rule includes situations in which the commute time from home to a job site in the morning is “extraordinary” because it exceeds the normal commute. The DOL has declined to define what constitutes an “extraordinary” commute, and the relevant FLSA regulations speak only to situations in which an employer makes a “special request” that an employee perform a “particular and unusual assignment” in another city. 29 C.F.R. § 785.37.
- The portion of the trip from the home office to the customer location is compensable, as is travel between customer locations.
- The answers to the above questions do not change simply because the travel occurs in a company-provided vehicle, as long as “the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment 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.” (citing 29 U.S.C. §254(a)). The “normal commuting area” for the employer’s business has been interpreted by courts to mean the particular employee’s normal and reasonably expected commute.
The Bottom Line for Employers
Although DOL opinion letters are not binding on the courts, an employer’s reasonable reliance on them may be helpful in defending against an alleged violation or to demonstrate good faith. Here, the DOL has provided clarification of the rules regarding several common forms of non-exempt employee travel, and employers would be well-served to familiarize themselves with these rules. Employers should recognize that the opinion letter does not answer all related questions, such as what constitutes an “extraordinary” commute warranting payment for a portion of the commute time, and what is the “normal commuting area” with respect to employees who commute in company vehicles. Employers should continue to monitor future opinion letters and court decisions for guidance in this area.