Portal to Portal Act: When an Employer Must Pay for Travel Time under the FLSA

One of the most common questions for employment lawyers is, when is an employee entitled to payment for travel time? In other words, when does the time an employee spends traveling be classified as hours worked for purposes of wage payment and/or overtime calculations?

The Portal-to-Portal Act is an amendment to the Fair Labor Standards Act (FLSA) enacted more than 70 years ago. Its primary purpose is to simplify the legal definition of a “compensable workday.” In general, it spelled out employers’ responsibilities and added protections to ensure that employees are paid for all time they spend working. Accordingly, federal lawmakers tried to shed light on the treatment of travel time for purposes of wage payment and overtime requirements. Although there are still some questions about this topic, many have been answered.

No, employees do not have to be compensated for their regular commute

Among other things, The Portal-to-Portal Act dispels any questions about payments for time an employee devotes to commuting to and from work. As set forth in 29 CFR § 785.35, employers are not legally obligated to pay employees for time spent traveling from their homes to their job site before the workday begins, or traveling from their job site to their homes at the end of the workday.

Of course there is always an exception to the rules. In this case, the exception applies when an employee is called back to work after their regular workday is over. For example, he or she has to travel an inordinately long way to respond to a work-related emergency after normal work hours, that time spent may be classified as hours worked. As per 29 CFR § 785.36, this may not apply if the employee is simply asked to return to his or her regular workplace.

Trips between workplaces during the same workday

The Portal-to-Portal Act also mandates that an employer treat time it takes an employee to get from one workplace to another during the same workday as hours worked. As we have already noted, this would be exclusive of their regular commute to and from work. However, it would include the time it takes to get from a central meeting place to a final work location.

As set forth in 29 CFR § 785.38 is a scenario where this applies is one in which an employee must go to one location for a specific work-related purpose (like getting the tools or instructions necessary to do a certain job) and then go to do the actual work at another site on the same day. In this case, travel from the designated place to the work place is part of the day’s work. Therefore, it must be classified as hours worked and the employee must be paid accordingly.

Travel to another city on one-day assignments

An employee is entitled to compensation for any time taken for round-trip travel between two cities in one day. As per 29 CFR § 785.37, however, the employer may be able to deduct the employee’s regular commuting time from the time spent traveling to the other city. Specifically, the employer may be able to do so if the employee does not report to his or her regular job site prior to the additional travel in question.

Overnight travel

The last stipulation pertains to circumstances in which an employee must travel away from his or her home and that travel spans more than one workday. In this case, the employer does not have to treat the time actually spent traveling, e.g., in a car or on airplane or train as hours worked unless it occurs during the employee’s normal work hours. Furthermore, as detailed in 29 CFR § 785.39 the employer must include travel time as hours worked is if the employee actually performs work while in transit.

Employers must also count as hours worked time spent by employees traveling on non-workdays if the travel takes place during the employees’ normal work hours. In other words, if an employee normally works Monday through Friday from 9 a.m. to 5 p.m. and the employee is traveling on the weekend, any time spent traveling between those hours on Saturday or Sunday must be counted as hours worked and the employee must be paid accordingly.

Conclusion

The Portal to Portal Act is often a useful source of information for employers seeking guidance on employee travel time for the purposes of wage and overtime payments. Because these regulations can be complicated, however, we also recommend that employers consult with employment lawyers or HR professionals with any questions or concerns.

Below are links to other topics covered in our FLSA – Hours Worked series:

* 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.

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