October 3, 2022

As COVID-19 restrictions have continued to loosen or be lifted altogether, staff have progressively resumed working within the workplace—and touring away from it for work-related causes.  On the subject of journey time within the employment context, the reply to the query, “Do I have to pay for that?” typically has no simple reply.  Somewhat, beneath the Truthful Labor Requirements Act (“FLSA”) and U.S. Division of Labor (“DOL”) laws, whether or not time an worker spends touring is compensable depends upon the kind of journey.  On this month’s Time Is Cash section, we offer a refresher on when and the way employers should pay staff for journey time.

Bizarre Residence-to-Work Journey

Time staff spend throughout their regular commute—i.e., touring from dwelling to their common office earlier than the start of the workday and from the office again dwelling on the finish of the workday—shouldn’t be thought of work time, and subsequently, shouldn’t be compensable.  See 29 U.S.C. § 254(a)(1) (“strolling, using, or touring to and from the precise place of efficiency of the principal exercise or actions which [an] worker is employed to carry out” aren’t compensable actions); 29 C.F.R. § 785.35 (“Regular journey from dwelling to work shouldn’t be worktime.”).

This common rule applies no matter whether or not the worker works at a hard and fast location or at totally different job websites.  Nevertheless, if a specific work website is considerably additional, and the commute to that location considerably longer, than the worker’s typical home-to work commute (e.g., 5 miles versus 50 miles), the employer ought to think about paying for that longer commute.

Similar Day Out-of-City Journey

If an employer requires an worker who usually works at a hard and fast location in a single metropolis to journey for a one-day project in one other metropolis, the journey time to and from that out-of-town vacation spot counts as time labored and have to be paid, even when it happens earlier than and after the worker’s common workday.  It’s because, in contrast to an extraordinary home-to-work commute, such journey is carried out for the employer’s profit to satisfy the wants of a specific and weird project, and subsequently, it qualifies as an integral a part of the “principal” exercise that the worker was employed to carry out.  See 29 C.F.R. § 785.37.

Nevertheless, the employer could deduct the time the worker would usually spend commuting to the common work website as a result of, however for the particular project, the worker would have needed to report back to the common work website.

Journey That Is “All in a Day’s Work”

An worker who travels from job website to job website all through the course of the workday typically have to be paid for that point.  For example, if an worker should report at a gathering place to obtain directions or decide up instruments after which journey to a job website, the journey from the assembly place to the job website is “a part of the day’s work” and counts as hours labored.  See 29 C.F.R. § 785.38.

If the worker should return to the employer’s premises after the final job of the day, that journey time additionally counts as hours labored.  Nevertheless, if the worker goes straight dwelling from the final job website as a substitute of returning to the employer’s premises, it turns into a standard home-to-work commute, which isn’t compensable.

In a single day Out-of-City Journey

An worker’s journey away from dwelling involving an in a single day keep entails a extra nuanced evaluation to find out whether or not, and the way a lot, of that journey time is compensable.  On this state of affairs, the DOL takes the place that any journey time that happens throughout the worker’s “regular working hours” on any day of the week counts as time labored—no matter whether or not it happens on an everyday workday (e.g., Monday by way of Friday) or on a non-workday (e.g., Saturday or Sunday).  See 29 C.F.R. § 785.39.  It’s because the worker merely substitutes journey for different duties.

Conversely, the DOL doesn’t think about as work time any time an worker spends touring as a passenger exterior of the worker’s regular working hours.  An vital exception to this common rule is the place an worker performs precise work whereas touring, similar to studying paperwork or sending enterprise emails whereas on a practice or bus, or the place the worker’s principal work exercise is to drive a truck, bus, or different car.  Within the latter instance, touring is the work the worker has been employed to carry out and have to be paid.  See 29 C.F.R. § 785.41.

This evaluation is harder to use the place the worker has no regular working hours.  The DOL has issued steering outlining three permissible strategies employers could use to fairly verify an worker’s regular work hours for functions of figuring out compensable journey time:

  • If the data of an worker’s time throughout the newest month reveal typical work hours, the employer could think about these as the conventional hours, except some subsequent materials change in circumstances signifies the conventional work hours have modified;
  • If the data do not reveal any typical working hours, the employer could select the common begin and finish occasions for the worker’s workdays; or
  • If an worker really has no regular working hours, the employer and worker could agree on an affordable period of time or timeframe through which journey exterior of the worker’s dwelling group is compensable.

As soon as the worker arrives at his or her out-of-town vacation spot for a enterprise journey involving an in a single day keep, the evaluation basically reverts to that as if the worker had been in his or her dwelling group.  That’s, time spent commuting from the resort to the work website earlier than the common workday, and from the work website again to the resort on the finish of the workday, is sort of a regular commute and subsequently needn’t be paid.  And if the worker is totally relieved from obligation and performs no precise work whereas on the resort, the employer probably could think about that non-compensable “off obligation” time.  See 29 C.F.R. § 785.16.  In fact, an employer should pay the worker for any precise work she or he performs whereas touring.

Different Concerns

The truth that sure journey time is compensable beneath the FLSA carries with it vital penalties.  Critically, employers should implement a technique for monitoring journey time.  Having an correct report of such hours allows the employer to correctly pay an worker who was engaged in compensable journey.  And since compensable journey time constitutes “hours labored,” it counts in the direction of the 40-hour per week threshold for additional time beneath the FLSA.

Lastly, as with all wage and hour points, you will need to affirm whether or not the state or locality inside which your touring staff work doesn’t have totally different journey pay necessities than the FLSA, as sure state and native legal guidelines could have extra demanding journey pay necessities.

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