Under the Fair Labor Standards Act (FLSA), employers have to pay minimum wage and overtime based on hours worked. But it’s not always clear what hours worked are. One perplexing question is whether employers have to pay for employee travel time. Let’s try to answer it.
What Is Work Time?
Most FLSA compensation requirements are based on time worked. Work time is generally any time that an employer “suffers or permits” an employee to work.
Interestingly, the law doesn’t actually tell us what “suffer or permit” means. But it’s clear that time worked goes beyond time that the employer intends the employee to be working. It typically includes any time spent working on the employer’s behalf, with or without permission.
What Isn’t Work Time?
The FLSA does say something about what doesn’t count as work time:
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities,
which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. For purposes of this subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee’s principal activities if the use of such a vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.
What does all of that mean in the context of travel time?
When You Do/Don’t Have To Pay for Employee Travel Time
Standard commuting time to and from work is usually not work time. Travel during the work day as part of the employee’s principal work activity is work time.
However, things get more complicated if the employee travels out of town.
If an employee who normally works at one fixed location travels out of town and returns home the same day, then the extra travel time is work time. But the employer can subtract the normal commuting time.
Overnight out-of-town work travel adds another wrinkle. Then, the general rules are that:
(1) Any time the employee actually spends working is work time (this includes travel time driving a car).
(2) The portion of the day(s) when travel time crosses the employee’s normal work hours is also work time (this includes time as a passenger).
The first of these rules is easy enough to follow/apply/accept. The second is harder. Consider the case of an employee who normally works 9:00 a.m. to 5:00 p.m. When she travels out of town for an overnight stay, the employer has to count any travel time during those hours as work time, even if she isn’t actively working or even driving. And this even includes travel on days of the week that the employee doesn’t normally work, such as weekends.
Employee Travel Time Caveats
These rules pertain to federal minimum wage and overtime requirements for non-exempt employees.
The FLSA does not require employers to pay exempt employees for their travel time.
State wage and hour laws may impose additional requirements.