Rules for paying drive, travel time require careful analysis

A common problem found in U.S. Department of Labor Wage and Hour investigations is the failure to pay for compensable travel or drive time.  Significant overtime liability can result from employers not compensating employees for this time.  It’s understandable that employers are confused about travel and drive time; there are many factors at play and courts are still grappling with some of the finer points of when travel time must be paid. Today we’ll go over some general categories of travel and drive time that employers deal with frequently.

Commuting:

• Normal commuting:  Regular home to work travel is not work time.  If an employee chooses to live two hours away from his employer’s place of business and he drives four hours round trip every day to get to and from work his employer is not responsible for paying for any of that time.

• Commuting in a company vehicle: The Employee Commuting Flexibility Act of 1996 says that commuting in a company-owned vehicle does not make regular home to work commuting time at the beginning and end of the workday compensable as long as the use of the employer’s vehicle is within the normal commuting area for the employer’s business or establishment and the use of the vehicle is subject to an agreement between the employer and the employee.  

• Carpooling in a company vehicle: The U.S. Department of Labor: Wage and Hour Division states in the field operation handbook that if an employee elects to transport other employees in a company vehicle and that employee is driving the company vehicle for his own convenience the time does not have to be paid. It also says that if the employer requires an employee to report to a central shop, yard, pick up place, etc. to pick up other employees and transport them to the work site then the time is hours worked for the driver.

Driving During the Work Day:

• Any time that employees spend driving during their work day is considered compensable time. For example, an electrician reports to the shop at 8 a.m. for a safety meeting, receives job instructions and spends the rest of the day driving to different jobs. He returns to the shop at 5 p.m. to drop off materials, speak with his supervisor, and turn in his time sheet. All of the time he spent driving during the day between 8 a.m. and 5 p.m. must be paid.

Multiple Work Sites:

• If an employer has multiple worksites and employees are expected to work at all or many sites throughout their employment (common in the construction industry), then the employer can require the employees to report directly to the job site and whether the job site, is 15 minutes away from the employee’s home or an hour away the time is not compensable.

Set Work Site:

• If an employee always works at the same worksite and one day is asked to report to a different worksite then the employer must compensate the employee for the additional commute time.

Travel Away from Home Community:

• If an employee is required to spend the night away from his home, the employer must pay for any travel time during the regular work day of the employee.  However, if the employee is a passenger on transportation such as an airplane, bus, train, etc. that time is not compensable when it is outside of his regular work hours.

Common Problems:

• Eating meals while driving: Many employees who spend their workday in a vehicle driving from one job to the next will eat their meals while traveling to the next job site. Since this travel time is work time, the employer may not deduct a half hour lunch if the employee eats while driving.

• Pre-shift and post-shift work:  Once an employee begins a principal work activity, his paid time has begun.  Court cases are still defining what exactly is a principal work activity but the DOL has said that things such as transporting work tools, loading materials, taking instruction from supervisors, morning meetings, reporting to a central work location and transporting other employees for the employer’s benefit are activities that begin an employee’s day. This means that any travel after any of these activities have taken place will be considered work time as well as any travel before any of these activities at the close of the day.

• Not counting drive time as regular hours: If an employer pays for hours spent driving or traveling those hours must be included when determining how many overtime hours were worked in the week.  Many employers try to pay for travel time but consider it a separate category like “Other time,” or “Non-productive Time,” or “Misc. Time,” and only pay overtime when the employer exceeds 40 hours of “regular work” time per week.  For the purposes of overtime there are no special categories of work time that aren’t included. If the time was paid and worked it must be included in the total weekly hours.

Kalen Fraser, founder of The Labor Brain Inc., can be reached at kalen@laborbrain.com.

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