Do We Have To Pay For That? Part 2'Travel And Commute Time (in A Post-Pandemic World)

• Published date: 11 March 2022
• Subject Matter: Employment and HR, Employee Benefits & Compensation
• Law Firm: Proskauer Rose LLP
• Author: Mr Allan Bloom

In this blog series, we look at a variety of activities and discuss whether an employer has to pay its non-exempt (i.e., overtime-eligible) employees for their time spent engaging in them. We'll focus on federal law, but as with all wage and hour issues, applicable state and local laws must be considered as well. Also, while we discuss the guiding principles, employers should always seek counsel on how to apply those principles to their specific facts.

In our first installment of this series, we looked at the compensability of time spent in COVID-19 vaccination, testing, and screening activities. Today, we're looking at work-related travel time, including time spent getting to and from the office or other worksite.

Two Fundamental Principles

Two fundamental principles run throughout the rules on travel time. The first is that in all circumstances, all time spent actually performing work-related tasks (regardless of the day of the week, time of day, or location) is paid time. See 29 C.F.R. ' 785.41 ("Any work which an employee is required to perform while traveling must, of course, be counted as hours worked.").

The second fundamental principle-a cornerstone of the 1947 Portal-to-Portal Act amendments to the Fair Labor Standards Act (FLSA)-is that time employees spend commuting from home to their place of work before the beginning of the workday and from work back home at the end of the workday is not considered time worked and therefore is not time for which employees must be paid. See 29 U.S.C. ' 254(a)(1) ("walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which [an] employee is employed to perform" are not compensable activities); 29 C.F.R. ' 785.35 ("Normal travel from home to work is not worktime.").

What is the "Normal" Commute?

The rule is clear that the "normal," "ordinary home to work" commute is unpaid. But what do "normal" and "ordinary" mean? The first guardrail is the language in the regulation itself, which defines "ordinary home to work travel" as travel "from home [to work] before [the] regular workday and [from work] to . home at the end of the workday." This language places the "normal" commute outside the boundaries of the workday-i.e., it occurs at the beginning of the day before work has started, and it occurs at the end of the day after work has ended. It does not include travel in the middle of the workday, which can be compensable under one of two different rules-the "all in the day's work" rule and the "continuous workday" rule.

Mid-Day Travel

Under the "all in the day's work" rule (29 C.F.R. ' 785.38), "time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked." So if an employee drives from home to the office, and then leaves an hour later to travel to a customer site, the drive from home to work is unpaid but the travel time to the customer site is considered compensable mid-day travel under the "all in the day's work" rule. The same rule would apply throughout the workday if the employee is traveling from site to site for work-related reasons, until the end of the workday. Once the employee completes the last task of the day, regardless of the location of that last task (e.g., back at the office, at a customer site, etc.), the travel from that location to the employee's home is the "normal," "ordinary" commute and is unpaid. The U.S. Department of Labor (DOL) gives this example:

If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home...