Although a recent injunction has halted the changes to the FLSA that were scheduled to go into effect on December 1, 2016, as a result, many employees who likely would have been reclassified from exempt to non-exempt may not, it never hurts to revisit the issue of when and how employers have to compensate non-exempt employees for travel time.
Travel pay is complicated and confusing
Generally, an employee is not at work until he or she reaches the work site. Similarly, an employee is no longer at work when he or she leaves the work site. This means that normal travel time from home to work, and from work to home, is not considered hours worked, and is not compensable. This is the case whether the employee works at a fixed location or different job sites.
But, if an employee is required to report to a designated meeting place where he or she is to pick up materials, equipment, or other employees, or to receive instructions before traveling to the work site, the employee must be compensated once he or she reaches the meeting place, and should be compensated for the time it takes to travel from the meeting place to the work site.
In addition, if an employee is asked by the company to transport employees to or from job sites, before or after the normal work day, that time is compensable as well. For the employees who are being transported, as passengers, this time is not work time and therefore, is not compensable. Similarly, if an employee transports or delivers materials or equipment to a job site prior to the start of the workday, or returns materials or equipment after the end of the work day, this time is compensable.
Travel During the Work Day:
Time spent by an employee travelling during the work day, as part of the employee’s normal work activities, is counted as hours worked and is compensable. An example of this is travel from work site to work site during the workday.
Out of Town Travel – Special One-Day Assignment:
If an employee regularly works at a fixed location and is specially assigned, for the convenience of the company, to a work site in another city for one day and returns home the same day, the time spent travelling to and returning from the other city, in excess of his or her ordinary travel time between home and work, is work time. However, if an employee works at different work sites or the employee’s work site changes day to day, or week to week, the travel time is not compensable.
Where travel time is compensable, as described, the time spent by an employee travelling from home to the airport or other public transportation terminal, and from the airport or other public transportation terminal to home, is considered as normal home to work to home commuting time, is not hours worked, and is not compensable. In addition, where travel time, as described, is compensable, the employee is to be reimbursed for associated transportation expenses.
Travel Away from Employee’s Home, Overnight:
Travel time involving an overnight stay is considered as work time when it corresponds to an employee’s normal work hours. This includes an employee’s normal work hours, on the employee’s normal work days, as well as the corresponding normal work hours on non-work days (e.g. Saturday and Sunday, if the employee’s normal work days are Monday through Friday).
Travel time spent by an employee as a passenger on a bus, train, airplane, boat or automobile, outside of normal work hours, where the employee does not perform work while travelling, is not considered as work time and is not compensable.
If an employee is requested by the company to transport other employees by automobile to or from the airport, or other public transportation terminal, or to or from the hotel, or to or from work sites, either during normal work hours or outside of normal work hours, and on normal work days or not, that time is compensable as well.
If an employee is offered public transportation for travel purposes (e.g., bus, train, airplane, or boat) but requests permission to drive his or her own automobile instead, the company, at its election, will count as hours worked either:
- the time spent driving the automobile; or
- the time that would have counted as hours worked, during normal work hours, if the employee had used the public transportation.
Time spent at a hotel where an employee is free to use his or her time for the employee’s own purposes, is not work time and is not compensable.
Rate of Pay for Compensable Travel Time:
Most employers pay the employee his/her regular hourly rate of pay for travel time. However, an employer would be permitted to pay an employee a lesser hourly rate for travel time, with the thought that often travel time is not productive time. However, the employer must always pay the employee at the minimum wage rate of pay, even for travel time. It is important to note, however, that in the case where an employee is requested by the company to drive and transport other employees, as described above, the driver should be compensated at his/her normal pay rate.
An employer is permitted to round travel hours to the nearest quarter hour. If an employer does so, from 1 to 7 minutes should be rounded down, and from 8 to 14 minutes should be rounded up. For example, 3 hours and 9 minutes would be set at 3.25 hours while 3 hours and 6 minutes would be set at 3.0 hours.
Generally, when an employer requires a non-exempt employee to attend training programs and similar activities, such time is considered as hours worked and is compensable, unless all four of the following criteria are met:
(a) Attendance is outside of the employee’s normal work hours;
(b) Attendance is voluntary;
(c) The training is not directly related to the employee’s job; and
(d) The employee does not perform any productive work for the employer during training.
In all cases when travel or training time is compensable, the employer may deduct from an employee’s compensable time, the employee’s normal unpaid meal break. As a reminder, employers are required by MA law to provide a 30 minute unpaid meal break to those employees who work more than 6 hours in a work day. If you have any questions about paying your employees for travel time, please contact one of Conn Kavanaugh’s employment lawyers for assistance.