October 25, 2012
Let’s assume it takes Jane an hour to commute to work in Boston. On Friday, Jane is going to a conference in Springfield, and her commute will take two hours each way. Does Jane’s employer have to compensate her for the extra time it takes her to get to Springfield? The answer to this question – and others like it – will help employers determine whether time spent “on the road” by non-exempt employees (that is, employees entitled to overtime) is commuting time, which need not be compensated, or “travel time” which must be compensated. Here, Jane’s employer must pay her for the extra two hours it will take Jane to get to and from Springfield, compared to Boston. Said another way, if an employee is told to report to a non-regular work site, he or she must be paid for the difference in time between the regular commute and the longer commute to a different location.
Here are some legal rules to keep in mind to help employers distinguish between commuting time and travel time.
Commuting Time Need Not Be Compensated:
- Ordinary home to work travel is commuting time. An employee who travels from home before his or her regular workday and returns to his or her home at the end of the workday is “commuting” and need not be compensated for this time. This is true whether the employee works at a fixed location or regularly works at different job sites.
- Breaks. Travel during regular meal breaks, as long as the employee is relieved of all work duties, is considered commuting time.
- Overnight travel. When an employee travels overnight for work, non-compensable commuting time includes travel to and from the hotel to the work site.
- Split shifts. Some employees work split shifts, such as 8-11 a.m., and 2-7 p.m. Employers usually do not pay the employee for time it takes to get home and return to the job during a split shift unless the time between shifts is so short that the employee could not reasonably use that time as he or she wishes. For example, if an employee travels between different job sites throughout the day, travel is a principal part of the employee’s job, and therefore, the employer must compensate the employee for all job-to-job travel. “Split shifts” is the subject that garners the most confusion when employers try to determine whether an employee is on or off duty. The Department of Labor has provided four factors for employers to consider when determining whether an employee actually is “off duty” during a split shift: the employee is completely relieved of all work-related duties; the employee knows in advance that she or he will have time off between shifts; the time off is long enough for the employee to effectively use the time as she or he wishes; and, the employee does not have to return to work until a definite, specified time.
Travel Time Must Be Compensated:
- Travel to alternate work sites. As described in the “Jane” scenario in the introduction of this article, “if the employee is required, for the convenience of the employer, to report to a location other than his/her regular work site,” the employer must pay the employee for “the additional time it would take for the employee to travel from the regular work site to the alternate work site and return.”
- Emergency return to work. There may be instances when travel from home to work is compensable. Let’s take the example of Ray, an electrician who works in the Metrowest area. At 5 p.m., Ray leaves his last job and goes home. At 8 p.m., Ray’s boss asks him to travel to Springfield to fix a client’s heating. In this case, Ray’s boss must pay Ray from the time he leaves his house until he gets home. This “emergency” exception applies when an employer asks an employee who has gone home after completing his day’s work to travel “a substantial distance” to perform an emergency job. The Department of Labor has not opined whether the employer would have to pay the employee who is asked to tend to an emergency at the regular work site or area.
- Travel that is a Principal Part of the Employee’s job duties. A visiting nurse spends her day traveling to patients’ homes. She spends approximately half an hour with each patient, and sees approximately 12 patients a day. Thus, the nurse actively works 6 hours a day, and spends an additional 2 hours a day traveling from one patient’s home to the next. Here, the employer must pay the nurse for the time she actively is working, as well as the time she spends in the car because travel is part of the nurse’s principal activity. Note that the employer may pay the nurse a lower hourly rate for travel, as long as this is put in writing prior to the nurse accepting the position.
- Reporting Time. Joe works at construction sites. Every morning, he goes to the home office to get his assignments and pick up tools. From there, Joe visits the various work sites. The employer must pay Joe from the time he reports to the home office to get his assignment and pick up equipment – the day does not start merely when Joe shows up at the first construction site.
- Employer’s Vehicle. An employee who is required to work during travel (e.g., by being required to drive the employer’s vehicle as part of a work assignment) must be paid for that time.
- Overnight Travel Outside of the Normal Work Schedule. An employee who is required to travel as a passenger on an overnight assignment away from the regular work site during hours on non-workdays that correspond to the employee’s regular working hours.
- One-Day Assignment Away from Regular Work Site. An employee who is required to travel as a passenger on a one-day assignment away from the regular work site must be paid for all travel time.
- Weekend Travel. If an employee is asked to travel for business on the weekend, all travel time must be paid. However, if the employee is traveling by bus, train, boat, or as a passenger in a car, the time is considered the employee’s own, and need not be compensated.