Optimistic employees sometimes claim compensation for all kinds of travel and related activities. A recent federal case in Ohio and a new Department of Labor (DOL) Opinion Letter remind us why those claims often are not justified.
Recall that the Fair Labor Standards Act (“FLSA”) requires that employees be paid for all time “suffered or permitted to work.” While workday travel from one job site to the next is considered as compensable working time, ordinary commuting time to and from work is not. In addition, preliminary and postliminary work is generally not compensable unless the activity is both “an intrinsic element” of the employee’s principal activities and one that the employee “cannot dispense [with] if he is to perform his principal activities.”
Against this backdrop, consider the claim of a group of traffic control specialists who sued their employer, a temporary traffic control services provider, for unpaid overtime. The employees drove employer-owned vehicles to their worksites where they spent the day performing traffic control services such as single-lane flagging and road closure operations before returning home with the trucks. They alleged that the employer unlawfully failed to pay them for time spent completing pre- and post-trip inspections on the employer’s vehicles, fueling the vehicles, driving the vehicles from home to the worksite (and back home after work), or driving and picking up other employees along the way.
A federal court in Ohio disagreed, finding that the employees failed to allege any facts indicating that “their driving time by itself was inherently compensable or that [the] commuting time included more than de minimis work activity.” Rather, the facts indicated that they were performing routine vehicle safety activities and other minor tasks that are not considered compensable.
Notably, while the employees claimed that they transported important tools and equipment like arrow boards and flashlights which were crucial to their job performance, they did not claim that they themselves spent any time selecting these materials or loading them into the vehicles (which might have been compensable). Instead, they merely had to check to see that this important work had been done by others. The judge ruled that this was merely a minimal, routine part of the job that did not rise to the level of compensable working time.
Labor Department Opinion Letter
A November 3, 2020, DOL Opinion Letter offers additional guidance on compensable travel issues by analyzing three scenarios involving employees who travel to the employer’s principle place of business to retrieve a truck, drive it to the job site, use it to transport tools and materials around the job site and then return it to the principle place of business.
Scenario One: The nonexempt foreman drives to the principle place of business to retrieve a truck to drive to a jobsite located close to or within the same city. At the end of the day, he returns the truck to the principle office, then commutes home. Meanwhile, some laborers drive directly from home to the jobsite while others meet the foreman at the principle place of business and then ride along in the truck to the jobsite.
In this scenario, the foreman’s time from home to the principle place of business is not compensable because it is just his regular commute. However, the time travelling from there to the job site, and back again at the end of the day, is compensable because his work day started when he reported to the principle site and drove the truck to the job.
The laborers who drove from home to the job site of course were not paid until they arrived at the site since this was an ordinary commute. As for those laborers who chose to ride along from the principle place of business to the job site, their travel time also was not compensable. Riding in the truck during what would have been an ordinary commute was considered a personal choice that “does not transform their commute into compensable worktime.”
Scenario Two: The jobsite is up to four hours’ travel time from the principle place of business. The foreman retrieves a truck from the principle site at the beginning of the job and keeps it to the end of the job. All employees working at this remote jobsite receive hotel accommodations paid for by the employer and also receive a meal stipend. Laborers are supposed to use their vehicles to travel to the jobsite, but some still choose instead to travel in the truck with the foremen.
Where the work site is so far away, the driving is considered “travel away from home” where the travel itself is considered to be equivalent to other work duties. Thus, the foreman’s time is compensable because he picks up the truck at the employer’s headquarters (at which point his work day begins) and then spends work time driving the vehicle to the jobsite where it is needed.
As for the laborers, the DOL’s general rule is that travel time is compensable if it “cuts across [the employee’s] normal work hours, even if they are travelling on what would otherwise be a nonwork day” (e.g. weekends). Thus, the laborers who rode in the vehicle with the foreman will be paid for any travel time occurring during the hours they normally work.
The laborers who drove their own vehicle will be paid in the same manner as those riding in the truck. The DOL maintains a separate policy whereby if the employer offers transportation but employees decline the offer in favor of driving themselves, the employer may pay the employees as if they accepted the employer’s offer and may exclude the remaining travel time. For example, if the principal place of business is two hours from the job site but the employee lives three hours from the job site and drives there personally, that employee need only be paid for two hours.
Scenario Three: Here, the laborers choose to travel home at the end of each work day instead of staying at the hotel. This travel time is not compensable since the laborers are relieved from duty and are choosing to spend this time travelling home.
Compensability of travel time is not always easy to discern and is often very fact-dependent. It is always good to check the rules on this before announcing how employees will be paid for travel time.