TRAVEL PAY AND FLSA OBLIGATIONS

Employees often ask themselves, "Should my employer be paying me for my drive or travel time?" It's an important question, especially if an employee spends a lot of time on the road for their employer.

Whether that time should be paid can have a tremendous impact on the wages owed, especially if that time would have triggered overtime liability. The Fair Labor Standards Act ("FLSA") makes it possible for employees to be awarded double the amount owed in overtime. In other words, if an employer fails to pay travel time when it is supposed to, and that time would have resulted in more than 40 hours in a regular work week, then the employee might be awarded by a court their regular hourly compensation, times one and a half for overtime, times two for liquidated, statutory damages, plus attorney fees. See 29 USC 216. 

The math can add up quickly. An employee who is regularly paid $20.00 per hour might be awarded $60.00 per hour for each hour not compensated, which would have resulted in overtime (regular rate x 1.5 for overtime x 2 for statutory, liquidated damages). 

So whether travel or drive time should be compensated is a serious question for employees and employers.

Determining whether travel time should be compensated can be a fact-intensive question. The Portal-to-Portal Act, which amended the FLSA, generally makes it so employers don't have to pay for regular commute time to work. The Employee Commute Flexibility Act creates some other exceptions, too. Other employees may also fall under the Motor Carrier Exemption, an exemption for employees who are within the authority of the Secretary of Transportation to establish maximum hours of service pursuant to Section 204 of the Motor Carrier Act of 1935 (except those employees covered by the small vehicle exception). 

However, balanced against these potential exemptions is the "continuous workday doctrine," which provides that “[w]here an employee is required to report at a meeting place to receive instruction or to perform work there, or to pick up and to carry tools, the travel from the designated place to the workplace is part of the day’s work and must be counted as hours worked regardless of contract, custom, or practice.”  29 CFR § 785.38.

In other words, under the continuous workday doctrine, even if there is an agreement or policy stating otherwise, an employer might have to pay that employee for travel if it occurs after the workday has begun. As a result, employers and employees will often have strong disagreements about when the workday has begun. It is a question that is often best analyzed by competent counsel. Employers and employees who have questions about travel or drive time policies and practices should immediately consult with an attorney because of certain strict time limitations.