FLSA Drive Time – When Should Overtime be Paid

The Southern District and Middle District of Florida constitute approximately 30% of all the Fair Labor Standards Act cases filed nationwide.  One of the issues that comes up often relates to drive time.

When does an employee’s drive to work become paid time? The Fair Labor Standards Act provides the federal rules governing pay for travel time. Employees covered by the minimum wage and overtime requirements (nonexempt employees) under federal law must be paid for all hours worked. Some states also have laws addressing travel time pay for workers and may require even more than federal laws.

Whether travel time is “hours worked” generally depends on the kind of travel involved and when it occurs. The travel time scenarios described in the federal regulations help answer many of the questions on the subject. But the rules can be confusing — and at times, inconsistent with state laws regarding travel time. Here are some basics to keep in mind when deciding whether travel time is paid work time.

Home to work — ordinary situation
Generally, the time an employee spends commuting between home and work isn’t considered work time. Federal regulations explain that an employee who travels from home to work and back again during the course of his normal workday is engaged in ordinary home-to-work travel. That’s considered a normal incident of employment and not work time that must be paid. This rule applies regardless of whether an employee works at a fixed location or at different job sites.

Home to work — emergency situation
Travel between home and work can become work time in certain emergency situations. If an employee who has gone home at the conclusion of his normal workday is later called out to travel a substantial distance to perform an emergency job for one of the employer’s customers, then the time spent traveling is work time that must be paid. The regulations don’t explain whether an employee’s travel time is work time when he is called back to his regular place of business for an emergency outside of normal work hours.

Home to work — one-day assignment in another city
When an employee who regularly works at a fixed location is given a special one-day assignment that requires travel to another city, the travel time is no longer considered ordinary home-to-work travel. The travel is being performed for the employer’s benefit and at the employer’s request to meet the needs of a particular assignment. Therefore, it falls within the category of “hours worked” or work time.

However, all the travel time isn’t counted as work time. The employee would have had to travel to his normal work site except for the special assignment requiring additional travel time. The portion of travel between the employee’s home and his normal work site, as well as his usual mealtime, may be deducted from the paid travel time.

Travel — all in a day’s work
Travel between work sites during the normal workday is counted as hours worked and must be paid. That’s because it’s considered part of the employee’s “principal activity.” In other words, it’s part of the work performed for the benefit of the employer. When you require an employee to report to a meeting place to receive instructions, to pick up tools, or to perform other work, the travel from the meeting place to the work site is part of the day’s work and counts as hours worked that must be paid.

This rule is one you should keep in mind to avoid unintended situations in which the start of the workday occurs at the employee’s home. If an employee is required to perform work at home before reporting to the first work site, the travel time between home and the first work site must be paid. The travel time counts as part of the day’s work rather than ordinary home-to-work travel (that need not be paid).

Transportation choices
What happens when you offer public transportation (e.g., an airline flight) to an employee required to travel away from home, but he chooses instead to drive his car? In that situation, you may count the actual time spent driving the car or the time you would have had to count as hours worked if the employee had taken public transportation. It almost goes without saying that any required work that is performed while traveling is hours worked that must be paid.

Overnight travel/travel outside the community
This travel time scenario is one to pay particular attention to when determining travel time pay obligations because federal and some state laws differ.

Under federal law, travel for work that requires an employee to be away from home overnight is considered hours worked only to the extent that the travel time overlaps his regular work hours. For example, if an employee who normally works 9:00 a.m. to 5:00 p.m. is required to travel to a work assignment that keeps him away overnight, he must be paid for any travel that occurs between 9:00 a.m. and 5:00 p.m.

The employee is simply substituting travel for other work activities. Federal regulations require payment for this type of travel whether it occurs on a normal workday or on a day the employee is not normally scheduled to work, such as Saturday or Sunday. Regular meal periods during the travel can be excluded as hours worked as long as the employee doesn’t perform work during that time.

Bottom line
With the explosion of wage and hour litigation, it makes sense to take another look at your company’s travel time pay policies and practices to ensure they comply with the law.

Ellen M. Leibovitch

Board Certified in Labor & Employment Law by The Florida Bar

eml@assoulineberlowe.com

www.assoulineberlowe.com

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