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Planes, Trains and Automobiles: Payment for Employees' Commute and Travel Time
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In This Issue |
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By Andrew Tanick of Rider Bennett LLP
We all know that employees are entitled to be paid for the hours they work, and we all know that non-exempt employees are generally entitled to overtime pay when they work over 40 hours in a week. But the specific question of which employment-related activities constitute "working," i.e., time for which an employee is entitled to be paid and time which is included in the calculation of "hours worked," is often not that easy to answer. According to the Department of Labor, "hours worked" include time that an employee is required to be on duty or at a prescribed workplace, and time that an employee is "suffered or permitted" to work, regardless of whether the work is specifically required. Obviously, those definitions are somewhat unclear, however, and as a result, there has been much litigation on the issue of whether certain activities constitute working hours. Much of that litigation has focused on the issue of pay for commute time or travel time.
Commute Time
Typically, commute time to and from work is not compensable as "hours worked." However, such commute time may be considered compensable work time if the employer has an agreement, custom, or practice to pay for such travel.
Unusual circumstances can also make commute time compensable. For example, extra time commuting to an off-site for training that is not "normal and contemplated" may be compensable. Similarly, an employee who performs an emergency job, outside of regular work hours, at some distant job site, is considered to be working during both the travel and the performance of the particular job.
Sometimes, even work performed during a regular commute can be compensable, if the employee performs his or her regular work duties during the commute. Minimal work performed during a commute, however, does not make the entire commute compensable. In a 1997 case, for example, a federal court ruled that immigration agents had no right to compensation for time spent commuting to and from work, even though the agents had to care for their trained dogs during the commute, because the amount of time they spent caring for the dogs was nominal.
Travel Time
Travel time that is not part of a daily commute or a "principal activity" is normally compensable. Specifically, all travel time for one-day out-of-town trips, outside the normal commute, constitutes "hours worked." With regard to overnight trips, however, only travel time during regular work hours, and other time when work is actually performed, constitute "hours worked." That is, travel hours outside of regular work hours are not hours worked unless work is actually performed.
Finally, employees whose "principal activity" consists of travel, such as telephone installers driving from work site to work site, or transportation workers (e.g., pilots, flight or ship crew members, truck drivers, etc.), are obviously entitled to pay for their travel time.
As can be seen, the question of payment for commute time and travel time, like so many employment-related issues, is not as simple as it may seem. Employers should always consult with their employment counsel before making a mistake that might prove costly.
Andrew Tanick is an attorney in the Labor & Employment Practice Group of the Minneapolis, Minnesota, law firm of Rider Bennett, LLP. He represents employers nationwide in all facets of employment law, including litigation, agency charge responses, day-to-day employment "counseling" issues and advice, and employee and/or management training. Rider Bennett, LLP is a full service law firm of about 100 attorneys, which has represented small and large local, regional and national businesses in employment law and other areas of law since 1960.
This article is only a general summary and is not a substitute for legal advice. If you have questions about this or any other employment law issue, please call Mr. Tanick at (612) 340-8900 or email him at atanick@riderlaw.com. For more information about Rider Bennett, please visit www.riderlaw.com.
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