One of the questions I am most frequently asked is, when should an employer pay for an employee’s travel time? In more technical terms, what they are asking is, when should time spent traveling by an employee be count as hours worked for purposes of wage payment and, oftentimes more importantly, overtime calculations?
In the Portal-to-Portal Act, an amendment to the Fair Labor Standards Act (FLSA), Congress attempted to clarify the treatment of travel time for purposes of wage payment and overtime requirements. Although some questions about travel time still remain, many have been answered. Additionally, some states, have laws that differ from the FLSA regarding the inclusion of travel time in the calculation of hours worked, a topic that will be covered in a subsequent blog post.
Travel to and from home
The Portal-to-Portal Act makes clear that employers do not need to pay employees for time spent traveling from their homes to their workplace before the start of the workday or traveling from their workplace to their homes after the workday is over. See 29 CFR § 785.35
One exception to this general rule is when an employee’s workday has ended and they are called back to work. If the employee has to travel an unusually long distance to get to a worksite after normal work hours, that travel time may be counted as hours worked. The example given by the US Department of Labor is that of an employee who is gone home from work and is then called to respond to an emergency a significant distance from home. The employer would be required to pay the employee for the time spent traveling to the location of the emergency. 29 CFR § 785.36
Travel from one workplace to another during the same workday
The Portal-to-Portal Act requires an employer to include time spent traveling from one workplace to another during the same workday as hours worked. As pointed out above, this would not include travel time from home to work before the start of a workday or from work to home after a workday ends. However, it would include time spent traveling from a central meeting place to a final work location. 29 CFR § 785.38
For example, if a general contractor requires its trades people and laborers to meet at its offices before traveling to a construction site, the general contractor would be required to include the time spent traveling between the offices and the construction site in the hours worked by each employee. Likewise, it would be required consider as hours worked any time spent by any trades person or laborer traveling between two or more construction sites during the same workday. The general contractor would not, however, be required to include as hours worked time spent by the employee traveling from home to the offices before traveling to the construction site or traveling home from the offices after the workday is over. It would also not be required to include time spent traveling home from a construction site after a workday is over if the employee is not required to return to the offices.
Travel to another city on one-day assignments
An employer must pay an employee for time spent traveling to and from another city in the same day. If the employee does not first report to his usual workplace, the employer may be able to deduct the time the employee usually takes to get to and from work from the time spent traveling to the other city. 29 CFR § 785.37
Travel that keeps employees away from home overnight
When employees are required to travel away from their homes and that travel spans more than one workday, an employer must include in hours worked the time actually spent traveling, e.g., in a car or on airplane or train, only if it occurs during the employee’s normal work hours. For example, if an employee normally works from 8:00 a.m. to 5:00 p.m., an employer is only required to include time spent traveling during that time period as hours worked. Time spent traveling before 8:00 a.m. and after 5:00 p.m. would not need to be included – with one caveat, if the employee actually performs work while traveling, the employer must include the time spent working as hours worked. 29 CFR § 785.39
Also, employers must count as hours worked time spent by employees traveling on non-workdays if the travel takes place during the employees’ normal work hours. To clarify, if an employee normally works Monday through Friday from 8:00 a.m. to 5:00 p.m. and the employee is traveling on Saturday, the employer would be required to count as hours worked the time spent traveling by the employee between 8:00 a.m. and 5:00 p.m. on that Saturday. If the employee’s travel spans that entire normal workday time period, the employer would be required to include all that time, minus time usually given for lunch or breaks, as hours worked. 29 CFR § 785.39. As noted above, if the employee actually performs work on a non-workday while he or she is traveling, the employer would need to count that time as hours worked regardless of what time the work is performed.
The Portal-to-Portal Act and its regulations provide some helpful guidance regarding when an employer must count travel time as hours worked for wage payment and overtime purposes. Employers, especially those whose employees are frequently on the move, are wise to try to understand their obligations to employees who travel. If a situation does not fit squarely within the guidelines set forth above, it is recommended that an employer contact an attorney or HR professional to help them ensure compliance with the law.
Below are links to other topics covered in our FLSA – Hours Worked series:
- Travel time
- Waiting time
- On-Call time
- Rest and meal periods
- Sleeping time
- Meeting and training time
- Show-up time
- Time suffered or permitted to work
- Unauthorized time (coming soon)
* States may have their own minimum wage and overtime laws, including their own standards for when an employee must be paid for waiting time. Employers are required to apply the federal or state minimum and overtime law that provides employees the greatest benefits. For more information on state minimum wage and overtime laws, visit our pages on minimum wage and overtime.