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Fair Labor Standards Act Primer | Part 2

February 26, 2019
 
(Second of two parts)
 
Determining whether time spent in travel is working time depends upon the kind of travel involved. AIM continues its two-part series on the lesser know elements of the Fair Labor Standards Act (FLSA).
 
Home to work - ordinary situation
 
An employee who travels from home before his/her regular workday and returns home at the end of the workday is engaged in ordinary commute for employment. This is true whether s/he works at a fixed location or at different job sites. Normal travel from home to work is not work time.
 
Massachusetts - If an employee who regularly works at a fixed location is required to report to a location other than his or her regular work site, the employee shall be compensated for all travel time more than his or her ordinary travel time between home and work and shall be reimbursed for associated transportation expenses.
 
Home to work in emergency situations
 
If an employee has gone home after completing the day's work and is subsequently called out at night (i.e. overtime) to travel a substantial distance to perform an emergency job for one of his employer's customers, all time spent on such travel is work time. The government takes no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to his regular place of business to do a job is working time.
 
Home to work on special one-day assignment in another city
 
An employee who works in Washington, DC, with regular work hours from 9 a.m. to 5 p.m. may be given a special assignment in New York City, with instructions to leave Washington at 8 a.m. The employee arrives in New York at noon, ready for work. The special assignment is completed at 3 p.m., and the employee arrives back in Washington at 7 p.m. 
 
Such travel may not be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer's benefit and at its special request to meet the needs of the assignment. It would thus qualify as an integral part of the “principal” activity the employee was hired to perform on the workday in question; it is like travel involved in an emergency call, or like travel that is all in the day's work. 
 
All the time involved, however, need not be counted. Except for the special assignment, the employee would have had to report to her regular work site, so the travel between his home and the railroad depot may be deducted, it being in the “home-to-work” category. Also, of course, the usual meal time would be deductible.
 
Travel that is all in the day's work
 
Time spent by an employee in travel as part of his/her principal activity, such as travel from job site to job site during the workday, are 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/her work on the premises at 5 p.m. and is sent to another job that he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all the time is work time. 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. 
 
Travel away from home community
 
Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee's workday (e.g. 8-4 or 9-5). The employee is simply substituting travel for other duties. 
 
The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is work time on Saturday and Sunday as well. The government does not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
 
When private automobile is used in travel away from home community
 
If an employee is offered public transportation but requests permission to drive his/her car instead, the employer may count as hours worked either the time spent driving the car or the time the company would have had to count as hours worked during working hours if the employee had used the public conveyance.
 
Work performed while traveling
 
Any work an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he/she is permitted to sleep in adequate facilities furnished by the employer.
 
AIM Members may call the Employer Hotline at 1-800-470-6277 with questions about FLSA compliance or any other HR matter. 
 
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