As the number of people working remotely decreases while employees start returning to their places of employment, or decide to make home their permanent office, a refresher on the requirements around the compensability of travel time to and from the workplace could prove helpful.
The general rule under the Fair Labor Standards Act (FLSA) is that employees must be compensated whenever they are working. However, pursuant to the Portal-to-Portal Act, time spent traveling to and from the actual place where the employee performs his or her principal activities, or “commuting time,” is excluded from compensable work time. Therefore, time spent traveling to and from the work site is generally not compensable. This applies whether the employee works at a fixed location or at different job sites. There is, however, a caveat to the general commuting time rule. The United States Supreme Court has interpreted the Portal-to-Portal Act as requiring employers to compensate employees for preliminary and postliminary activities that are “integral and indispensable” to the employee’s primary job duties. For example, if an employee’s job requires working with toxic materials, time spent washing up before and after work may be compensable. Therefore, the question of whether the time is compensable often turns on whether the preliminary or postliminary activities are integral and indispensable activities. Unfortunately, it is not always clear whether an activity is integral and indispensable.
On November 3, 2020, the Department of Labor (DOL) issued an Opinion Letter that provides some guidance on the issue of compensable time for preliminary and postliminary travel time. The Opinion Letter was issued in response to a request from a construction company which asked questions regarding its forepersons and laborers who travel to a yard to retrieve a company vehicle before leaving for customer sites. U.S. Dep’t of Labor, Wage & Hour Div. Opinion Letter FLSA2020-16 (November 3, 2020). The DOL issued opinions on each of the different scenarios presented by the construction company which are briefly summarized below.
If the employer requires the foreperson to drive to a yard to pick up (and, at the end of the day, drop off) a truck before going to a job site in the same city, the foreperson’s drive is compensable because the employer needs the trucks on the job sites to transport tools and materials, and the trucks must be secured at the yard at the end of the day to ensure safety and security. The employer’s need makes the work integral and indispensable. Even where the worksite is remote (defined as 1.5 to 4 hours away), the foreperson must still pick up a company truck for the same important, job-related reasons and his or her travel time from the truck yard to the work site is therefore compensable.
Where laborers are offered the choice to drive with the foreperson to the worksite, or meet him or her at the site. The DOL’s position with regard to the time it takes the laborers to get to the worksite is more nuanced. For laborers that drive themselves to the remote job site, their time is compensable if the travel time cuts across their normal work hours, i.e., travel during normally scheduled work hours (even if on a non-work day) must be paid.
Finally, where a worksite is remote and the employer offers the laborers hotel accommodations for the duration of the job, but the laborers choose to drive to and from home to the remote site each day, the first and last day of travel for the job would be compensable where the travel time overlaps with scheduled work hours. During the intervening days, however, the laborers’ travel is not compensable. The DOL’s reasoning here is that the laborers may use their free time however they choose, and the employer should not be penalized if the laborers choose to drive home each day.
Employers should keep in mind that there are many nuances when determining whether travel time is compensable and the answer will depend on many factors including the type of travel, the time of day, and whether the work is integral and indispensable. Although the DOL’s opinion letter is not binding, it functions as a useful predictor of how the agency might view similar travel arrangements across other industries, for example, those that employ delivery drivers. While the opinion letter focuses on the construction industry, the general concepts are relevant to any employer with non-exempt employees who travel from a centralized location to other job sites.