Travel time pay can be a tricky thing to master, and the issue is fraught with risk since travel-related issues in particular pose a significant risk for wage and hour claims. One question that comes up a lot is whether or not time spent traveling to work is considered compensable work time.
The FLSA established minimum pay regulations, but it was actually the Portal-to-Portal Act of 1947 that amended it and eliminated the question of whether standard commuting time could be compensable. In short, the Portal-to-Portal Act abolished all claims for minimum wages or overtime wages for any preliminary or postliminary activity engaged in by an employee (absent "an express provision of written or nonwritten contract" or a custom or practice in effect that made the activity compensable).
It specifically excluded certain activities from being compensable time, including walking, riding, or traveling to and from the actual place of performance of the principal activity to be performed and it also excluded activities that are preliminary and postliminary to the principal activity (which occur before the workday begins or after it ends).
"This is why, when you think of just general commute time (going from home to work) as being non-compensable—it’s because of this amendment that that’s the case." Karen Clay outlined in a recent BLR webinar.
However, be careful with the idea of preliminary and postliminary activities being non-compensable: "An employer cannot succeed in having these provisions of the Portal-to-Portal Act apply simply by designating certain activities as preliminary or postliminary . . . when these activities are in fact the same type of work that is being performed by employees throughout the workweek. Generally speaking, if the activity is an integral part of the principal activity, then it’s compensable." Clay explained.
Travel Time Pay: Commute Time Exceptions
While home to work travel is not compensable, in general, there are some specific exceptions. For example, travel from a central location to an outlying work site is compensable if duties are performed at the central location before the travel. This might be something like loading up and transporting tools or equipment from central location or even receiving instructions from the central site before proceeding to a job site.
Additionally, an employee’s travel time from job site to job site during the course of the workday is typically compensable. Courts have generally followed this rule, finding that once an employee engages in compensable work at one site he or she is entitled to compensation to the next job site.
For more information on when travel time pay is owed, order the webinar recording of "Employee Travel Pay Explained: HR’s Wage & Hour Road Rules." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Karen Clay is an associate in Jones Walker’s Labor & Employment Practice Group and practices from the firm’s Jackson office. She primarily represents employers in litigation related to discrimination and harassment in the workplace and also has experience representing employers on wage and hour issues.