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A “Primer” on the Compensability of Commute Time Under the FLSA

September 9, 2015 Employment law

Most employers know that the federal Fair Labor Standards Act (FLSA) mandates a payment premium when non-exempt (sometimes referred to colloquially as “”hourly””) employees work more than 40 hours in a week. Sounds simple enough, right? But not so fast. The law is fraught with specific requirements pertaining to various types of work and the conditions under which it is performed. Then there are exceptions to those requirements. And then there are exceptions to those exceptions, and so on it goes. One of those thorny subjects that raises many questions in the abyss of FLSA requirements is the compensability of commute time. When an employee has to drive to and from work, is the drive time compensable? What if the work is to be performed at a remote work site? What if the drive is in a company vehicle? Is it always compensable? Is it only sometimes compensable? If so, when?

Although one blog post could never address every commute-time issue that might arise — the law here is necessarily context-specific — there are some general rules that every employer should probably know. Or, that any employer who takes the time to search out and read about would want to know (and kudos to you for finding and reading this). So, I’ve put together this brief primer on the basic rules pertaining to the compensability of commute time. If you or your company is facing a commute time problem, hopefully this primer will at least get you started on the path toward clarity (or as close to “”clarity”” as is possible when the FLSA is involved).

The General Rule: Travel time is not compensable. Let’s start at the very beginning. Way back in 1947, Congress amended the Fair Labor Standards Act (which had been around for 9 years) by enacting the Portal-to-Portal Act. Under that law, time spent “traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform” is not compensable.

The First Corollary: Travel time between home and work is not compensable. The US Department of Labor, which promulgates regulations interpreting the FLSA, explains that under the statute, time spent traveling between home and the work site at the beginning and end of each day is not compensable. Here is what the DOL says: “An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not work time.” Ok, fair enough. But what if the employee is traveling in a company vehicle? Read on.

The Second Corollary: Use of a company vehicle doesn’t alone affect compensability. Questions about the impact of company-provided vehicles on the compensability of commute time under the Portal-to-Portal Act eventually led Congress to step into the fray again, this time enacting the Employment Commute Flexibility Act of 1996. That law clarifies that use of an employer’s vehicle for travel does not convert otherwise non-compensable time to compensable time “”if the use of such 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.” In other words, if an employer asks an employee to travel in a company vehicle from home to a remote work site, and then back home again at the end of the day, that commute time is probably still non-compensable, at least if the commute is within the “”normal commuting area”” of the employer. What is “”normal”” seems to be yet another context-specific question, but courts have found commute times from 30 minutes all the way up to several hours to be within the range of “”normal”” for these purposes.

The First Exception: Beginning principal activities at home may make the commute compensable. Here’s where it starts to get a little trickier. The FLSA draws a line between, on one hand, “”principal activities”” or tasks that are “”integral and indispensable”” to those principal activities, and, on the other hand, those tasks that are merely “”preliminary”” or “”postliminary”” to principal activities. The former are generally compensable, while the latter typically are not. Indeed, you may have heard these terms in the news recently, as the US Supreme Court issued an opinion earlier this year concluding that warehouse workers for an contractor need not be compensated for time spent undergoing security screenings at the end of the work day because the screenings are not “”integral and indispensable”” to the workers’ “”principal activities”” but instead are merely “”postliminary.”” Indeed, you can expect to hear more about this distinction in the coming months and years, as issues percolate concerning the compensability of such modern and regular occurrences as employees checking e-mail and performing other tasks on their smartphones during otherwise non-working hours. But more on that another day…

Since we are concerned here with commuting, that is our focus. Commute time to and from home is generally non-compensable, as described above. But when an employee undertakes to perform “”principal activities,”” or tasks that are “”integral and indispensable”” to principal activities, at home, and then begins the commute, the commute may suddenly transform into compensable time, where it wasn’t before. This is because of what is known as the “”continuous workday rule.”” Under that rule, once an employee begins his or her first principal activity of the day, then the work day continues until the last principal activity is concluded. Thus, where an employee, for example, logs in to the employer’s work-assignment system and obtains a schedule or other instructions for the day, prior to commuting, that employee’s work day may have begun.

Note the intentional (and emphasized) term “”may”” in the last sentence, above. The line between those activities that count to trigger the start of the continuous work day, and those which are merely preliminary or otherwise de minimis and therefore do not, is not just fuzzy and gray but also quite vast (sounds like another blog topic for yet another day). For now, it is sufficient for purposes of this “”primer”” to note that while commute time between home and the work site at the beginning and end of the day, whether in a company vehicle or not, is generally not compensable, that commute may become compensable if the employee performs principal activities at home prior to or upon conclusion of said commute.

The Second Exception: Required retrieval of the company vehicle may render the commute time compensable. The rules described above apply when an employee travels to and from home, but those rules change when an employee’s commute involves retrieval of a company vehicle from a designated location, such as the employer’s office or a parking or storage facility. This requirement may become an issue where employers require employees to leave their company vehicles at a designated location, and use their own vehicles to get between that location and home. In such circumstances, the employer’s requirement that the employee check in to retrieve the company vehicle may trigger the start of the continuous work day, so that any commute that occurs between the vehicle-retrieval site and the work site becomes compensable. Here’s what the DOL has to say about this situation: “”Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer’s premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.”” So, if a company requires employees to report to the office to receive their work assignment and pick up the company vehicle, then commute to one or more remote work sites, the commute time after leaving the office likely becomes compensable.

The Third Exception: Overnight stays may be game-changers. So, where are we? Commute time between home and the worksite is generally not compensable, even in a company vehicle, unless principal activities (or activities that are integral and indispensable thereto) are performed at home first (or upon return at the end of the work day). Where, however, the work day begins at home due to the conduct of qualifying tasks, or where the commute departs from and returns to a designated location where a company vehicle is retrieved, then the commute time may become part of the compensable continuous work day. Ok, so what about where the work involves a commute that necessitates an overnight stay? Well, once again, the rules may change a bit. The DOL says: “”Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee’s workday.”” So, travel requiring an overnight stay may be compensable even if it falls within the employer’s “”normal commuting area,”” it seems. Fair enough.

But it gets a bit more complicated, even, than that. The DOL goes on to state that “”[t]he [commute] time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days.”” Huh? The DOL explains that if the employee regularly works Monday through Friday from 9 a.m. to 5 p.m., but makes the out-of-town commute on a Saturday or Sunday, then the commute is compensable IF it is conducted between those regular 9-to-5 hours. A necessary corollary to this interpretation, then, seems to be that if the commute is conducted outside of the 9-5 hours on a weekend, then it is not compensable. Oh, and also, if the employee is merely riding as a passenger, rather than driving, then the time is also non-compensable, whether during hours on non-working days that correspond to regular working hours or not.

Lest this primer become a treatise, that will be all for today. Hopefully you found this primer helpful, and maybe it answered a question or two. More than likely, it raised a few questions for you as well. And if there’s one lesson to be learned from all this, it’s that when it comes to the FLSA, one can almost always be assured that if there is a rule, there likely is an exception lurking out there somewhere. It’s all about the context, folks.

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