Wage and hour laws are always fact-specific, and travel time is no exception. The Code of Federal Regulations (CFR) is actually clear on this point: “The principles which apply in determining whether or not time spent in travel is working time depend upon the kind of travel involved.” (§ 785.33) There are six main scenarios where travel time issues arise:
Commuting From Home to Work.
Let’s start with an easy one.
Question: Bob drives every morning to work during rush hour. Sometimes it takes him 30 minutes from his home to the office, and sometimes it takes him an hour. Do you have to pay him for his commute?
Answer: No. Regardless of how long a commute takes within an employee’s commuting area the travel to work is not compensable.
Variation . . .
Question: Assume Bob is a plumber and his job site changes from day-to-day. Do you have pay him for his commute from his home to the job site?
Answer: No. Normal travel from home to work is not working time even if the job site varies.
Commuting From Home to Work for an Emergency.
Question: Bob, the plumber, clocks out after an 8 hour shift. An hour after getting home you call him to address an emergency at a residence an hour a way. Do you have to pay him for his travel time?
Answer: Yes. According to CFR § 785.36, “if an employee who has gone home after completing his day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer’s customers all time spent on such travel is working time.”
Variation . . .
Question: What if you called Bob in after his workday to come to your regular place of business?
Answer: Not clear. The Wage and Hour Division takes no position on whether that would count as working time.
Travel That is All in a Day’s Work.
Question: Bob has six houses he needs to go to throughout the county. Do you have pay for his travel time between each house?
Answer: Yes. Travel is a part of his principal activity. One of his duties is to drive to each of these houses. Therefore, his travel time is compensable. However, just as in scenario #1, his commute from his home to a job site and the commute back home are not counted as working time.
Worked Performed While Traveling.
Question: Bob has an apprentice who is required to travel along with him in his vehicle. Does his travel time count as working time?
Answer: Yes. Any work which an employee is required to perform while traveling and any travel by an employee who is required to ride along as an assistant or helper is working time.
Commuting From Home to Work on a Special One-Day Assignment in Another City.
Question: Teresa, your Head of Sales in the Philadelphia office, is given a special one-day assignment to work in Baltimore. Her normal hours are 9 AM-5 PM. You instruct her to take the 8 AM train to make a conference that begins at 9:30 AM. The conference ends at 5 PM and she arrives back in Philadelphia at 6:15 PM. Do you have to pay for her travel time?
Answer: Yes, but only 8 AM-6:15 AM. You do not have to pay her for the commute between her house and the train station.
Travel Away From Home Community.
Question: Assume in the scenario above you asked Teresa to attend a conference in San Francisco. She regularly works 9 AM-5 PM, Monday through Friday. On Monday, she flies out at 7:00 AM EST and lands in San Francisco at 10 AM PST (3 PM EST). Do you have to pay for the travel time?
Answer: Yes, but only 9 AM-3 PM. As an enforcement policy, the Department of Labor does not consider as working time that “time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile” (CFR § 785.39).
Variation . . .
Question: What if, instead, Teresa flies out on Sunday at 7:00 AM EST and lands in San Francisco at 10 AM PST (3 PM EST). Do you have to pay for the travel time?
Answer: Yes, but once again, only for 9 AM-3 PM. Travel time is working time during the corresponding hours, in this case, 9 AM-5 PM, on nonworking days.
As you can see, whether you must pay for your employee’s travel depends on the facts of the situation.
Do you have a question about your employee’s travel time? Contact your HR Consultant.