If you’re a “non-exempt” employee — typically someone who doesn’t work in a professional, executive or managerial capacity and who earns an hourly wage — your compensation structure is pretty simple. Under the federal Fair Labor Standards Act (FLSA) you get paid for the hours you work and if you put in more than 40 hours in a week, you get overtime.
But what about time you spend traveling for work? That seems simple too. You don’t get paid for commuting time to and from work. But you do get paid for time you spend traveling around during the workday.
This seems straightforward on the surface. But there are little wrinkles and nuances that workers and employers need to understand.
What if an employee’s activities at home signal the start of the workday? In that case, he or she has to be paid for that time. For example, a federal court in Massachusetts ruled that an insurance adjustor who made phone calls, checked email, reviewed the day’s assignments and mapped out her route for the day while still at home in the morning had to be paid for her commuting time, since these activities signaled the start of the workday. Similarly, a federal judge in Indiana ruled that a bus driver who kept his bus at home and had to spend significant time inspecting it in the morning before leaving on his route had to be paid for travel time between his house and his first stop.
On the other hand, in a more recent case out of California the 9th U.S. Circuit Court of Appeals ruled that a man who installed car alarms did not need to be paid for his commuting time even though he received, mapped and prioritized jobs and routes before leaving his home in the morning and ended the day by sending an electronic communication to his boss about all the jobs he did during the day. According to the court, his route-mapping activity was related to his commute and took very little time, and thus was too insignificant to be compensable.
Another interesting situation is out-of-town travel for non-exempt employees. Any travel you make that’s outside your regular work hours will not be considered work time. But if you’re traveling during your regular work hours, it does count as “time worked” even if it’s not a day you would have normally gone to work. So if you work a normal 9-to-5 schedule during the week and you travel on a work trip from 3 p.m. to 11 p.m. on Saturday, your employer has to pay you for the two hours you spent traveling between 3:00 and 5:00. The rest of the time is unpaid.
The mode of transportation you use when traveling matters too. Let’s say an employee can either drive or take a train. If the worker opts to drive, the employer can decide whether to pay him for the time he actually spent driving or the hours that overlap with his normal work hours. But if the employer doesn’t give the employee the option to use public transportation and he’s forced to drive, then he has to be paid for all of his travel time.
Of course once a non-exempt worker reaches his final destination, he doesn’t need to be compensated for every minute spent there. The employer only needs to pay the employee for the time spent doing the work he or she was sent to do.
To make things even more confusing, the rules are different for one-day trips that don’t require an overnight stay. In those instances, the employee’s commute to the airport or train station is still considered unpaid commuting time. But the rest of his travel time is paid, including time spent waiting around an airport terminal if there’s a flight delay.
All of the above scenarios deal with the requirements under FLSA. Employers also need to be aware of state laws that may be stricter. States can give workers more rights than they’re entitled to under FLSA, but they can’t take away rights that FLSA guarantees. So if you’re trying to figure out if you need to pay a particular worker for travel time or if you’re a non-exempt worker and you think you may be getting stiffed for time that should be paid, be sure to talk to an attorney where you live.