The Fair Labor Standards Act (FLSA), the Portal-to-Portal Act, and their implementing regulations generally require employers to pay an employee when the employee is working. However, the regulations do not always address every situation and questions can arise regarding whether or not employees should be paid in certain situations. For example, should a construction employee be paid when traveling to and from a job site?

Generally speaking, an employee’s normal travel time to and from work (i.e., commuting time) is not compensable when the travel occurs before the employee starts or after the employee stops his/her principal activities. However, according to the Department of Labor Wage and Hour Division (WHD), travel to the work place when it is part of the day’s work (i.e., when the employee is required to report to a meeting place to receive instructions or to perform other work there, or to pick up and carry tools), is compensable. WHD has stated, however, that as an enforcement policy, it does not consider travel away from home outside of regular working hours as a passenger to be compensable.

Opinion Letter

On November 3, 2020, WHD issued an opinion letter regarding whether employees are entitled to be paid for travel time when traveling to construction job sites. Specifically, WHD addressed whether the travel time of non-exempt foremen and laborers is compensable in three different scenarios. Under each scenario, the employer keeps its company trucks at its principal place of business. The foremen are required to travel to the employer’s place of business to retrieve a company truck, drive the truck to the job site, and return the truck to the employer’s place of business.

First Scenario

The first scenario dealt with local job sites (i.e., job sites that are close to or within the same city as the employer’s principal place of business). In this scenario, the foreman picks up a company truck from the employer’s principal place of business, drives the truck to the job site, and returns the truck at the end of the day. Laborers may choose to drive directly to the job site or drive to the principal place of business and ride to the job site with the foremen.

In its opinion letter, WHD stated that the foreman’s travel time between the employer’s principal place of business and the job site is compensable because the foreman’s retrieving and returning of the truck are integral and indispensable to the foreman’s principal activities. WHD stated that the laborers’ time traveling to and from the job site, on the other hand, was noncompensable commuting time. WHD concluded that the laborers’ choice to meet at the employer’s place of business and ride to the job site with the foreman in the company truck did not transform their noncompensable commute into compensable worktime.

Second Scenario

The second scenario dealt with remote job sites (i.e., job sites located between 1.5 and 4 hours’ travel time from the employer’s principal place of business), where the foreman and laborers are away from home overnight. In this scenario, the foreman picks up a company truck from the employer’s principal place of business at the beginning of the job, drives the truck to the job site, and returns the truck at the end of the job. Laborers drive their personal vehicles (or are passengers in the company truck after driving to the employer’s principal place of business) to and from the remote job site at the beginning and end of the job.

As with the first scenario, WHD stated that the foreman’s travel time between the employer’s principal place of business and the job site is compensable because the foreman’s retrieving and returning of the truck are integral and indispensable to the foreman’s principal activities. The laborers’ travel time, however, is more complicated. WHD concluded that the laborers’ travel from their hotel to the job site is noncompensable home to work travel.

The laborers’ travel to and from the remote location at the beginning and end of the job, on the other hand, may or may not be compensable. According to WHD, for laborers who drive, the time the laborers spend driving to and from the remote job site at the beginning and end of the job is compensable if the travel cuts across their normal work hours, even if the laborers are traveling on what would otherwise be a non-workday. For laborers who are passengers, whether the travel time is compensable depends on when the laborer travels. If the laborers travel as passengers outside normal working hours, WHD would not consider their time to be compensable. On the other hand, if the laborers travel as passengers during their normal working hours, even if not on normal workdays, their time would be compensable.

Third Scenario

The third scenario is the same as the second scenario expect the laborers choose to travel between the remote job site and their homes daily rather than staying at a hotel. According to WHD, the laborers’ time to and from the job site at the beginning and end of the job is compensable if the travel cuts across normal work hours. The travel time on the other days would not be compensable.

As the regulations regarding employee travel time – especially employees working on construction projects – can be complicated, employers should carefully review the regulations and consult with counsel if necessary to ensure they are in compliance.

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