Let’s talk about travel time. We have already dealt with some of these issues including the Portal-to-Portal Act and its effect on travel time. So there is the general rule according to the Regulations: “The principles which apply in determining whether or not time spent in travel is working time depend upon the kind of travel involved.” 29 CFR § 785.33. What else the employee is doing while he is traveling, where he is traveling and why he is traveling also affect whether the travel time is compensatory. First and foremost, the Regulations are very clear that ordinary commuting time is not working time thanks to the Portal-to-Portal Act.
An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not work time.
29 CFR § 785.35. Even where the travel time is really long, if it is ordinary home to work travel it is not work time. For example, in Vega v. Gasper, 36 F3d 417 (5th Cir. 1994), the court determined that travel time of four hours per day on buses supplied by the employer to and from the worksite was not compensable working time. The court found important that there was no work performed before or on the ride, the employees didn’t carry or load tools, the employees got information during the ride but it was personal, like pay rates, rather than work-related, the employees were not required to use the bus and they chose where to live and how to get to work. But, in Dooley v. Liberty Mutual Life Insurance Co., 307 F.Supp 234 (D. Mass 2004), a claims adjuster performed administrative tasks at home before and after his first and last trip to the field for the day. The court found that these administrative tasks were integral to his work so the travel was part of a “continuous work day” and the travel time was compensable.
So what do the Regulations say about when travel time is working time? Here is what they say:
Home to Work in Emergency Situations
When an employee has completed his normal day’s work and is called upon to travel a substantial distance to perform a special job at the request of his employer, the resulting travel time must be counted as hours worked. 29 CFR § 785.36.
Home to Work on Special One Day Assignment in Another City
When an employee who normally works in a fixed location is given a special one day assignment in another city, the resulting travel time must be counted as hours worked. For example, an employee who lives in Grand Rapids, Michigan with regular working hours from 9:00 a.m. to 5:00 p.m. is given a special assignment to work in Detroit with instructions to leave Grand Rapids at 8:00 a.m. on the train. He arrives in Detroit at 11:00 a.m. ready for work. The special assignment is completed by 4:00 p.m. and the employee arrives back in Grand Rapids at 7:00 p.m. Because this travel is performed for the employer’s benefit at his special request to meet the needs of a particular and unusual assignment, it would qualify as an integral part of the principle activity which the employee was hired to work on that workday and it is, like travel involved in an emergency call, or like travel that is all in a day’s work, considered time worked.
All the time involved, however, may not be counted since, except for the special assignment, the employee would have had to report to his regular work site to travel between his home and the railroad depot to take the train to Detroit may be deducted as being in the home to work category. Also, normal meal periods may be deducted. 29 CFR § 785.37.
Travel that is All in a Day’s Work
Time spent by an employee in travel as part of his principle activity, such as travel from job site to job site during the work day, must be counted as hours worked. For example, an employee is required to report at a meeting place to receive instructions or to perform other work there or to pick up and carry tools and travel from the designated place from the workplace, that is all work that is all in a day’s work and must be compensated. 29 CFR § 785.38.
Travel Away From the Home Community
Travel that keeps an employee away from home overnight is considered travel away from home. Travel away from home is work time when it cuts across the employee’s normal workday. This is true even when the travel time occurs on the weekend. For example, if the employee’s normal workday is 9:00 a.m. to 5:30 p.m. and the employee is traveling between the hours of 9:00 a.m. and 5:30 p.m. even on a Saturday or Sunday, the time must be considered hours worked and must be compensated. A regular meal period time may be deducted. Time spent outside the normal work hours as a passenger on an airplane, train, boat, bus or automobile is not considered hours worked and need not be counted. 29 CFR § 785.39. If the employee is required to drive, all time spent driving is hours worked and must be compensated.
Travel by Automobile Away From the Home Community
If an employee is offered public transportation but requests permission to drive instead, the employer can count as hours worked either the time actually spent driving the car or the time the employee would have spent traveling had he taken the public transportation. 29 CFR § 785.40.
That’s what they say, and now you know. Next week we will wrap up working time with some odds and ends and throw in some recordkeeping requirements before we move on to the exciting world of Overtime!