DOL Issues Opinion Letter On What Constitutes Work Time When Employees Travel

On April 12, 2018, the US Department of Labor’s Wage & Hour Division (WHD), issued an opinion letter, FLSA2018-18, responding to an employer’s request for guidance concerning its obligation to compensate employee travel-time under the Fair Labor Standards Act.

The WHD begins the opinion letter by re-affirming several basic principles:

  • Compensable time generally does not include time that employees spend commuting to and from work, even if they work at no fixed location or at different job sites.
  • Unlike ordinary commuting time, time that employees spend traveling from job site to job site during the workday is compensable.
  • Time that employees spend traveling away from their home community is compensable if it corresponds with their normal work hours, including weekend hours that correspond with the employees’ normal workweek hours.
  • Time that employees spend traveling away from their home community outside of their regular work hours, as passengers in an airplane, train, boat, bus, or automobile, is not considered worktime.

Employer Case Studies

Next, the WHD applies those principles to three scenarios about which the employer inquired.
The first involves employees with no regular work schedule, who travel away from their home community. The WHD points to three non-exclusive methods that employers may use to determine what counts as worktime.
The employer may review the employees’ time records during their most recent month of regular employment. If the records reveal typical work hours, the employer may consider those hours as the employees’ normal work hours going forward, absent a later material change in circumstances indicating that those hours have changed. If the records don’t reveal normal work hours, the employer may individually average the employees’ start and end times. Or, “in the rare case” in which employees truly have no normal work hours, the employer and the employees, or their representative, may negotiate and agree to a reasonable amount of time or timeframe during which travel beyond the employees’ home community is compensable.
If an employer reasonably uses any of those methods to determine an employee’s normal working hours, the WHD will find no violation if the employer compensates the employee for travel only during those hours. But, of course, the employer must compensate employees for time spent working on the road, even if it falls beyond the employee’s regular workday.
The WHD also addresses whether calculating compensable travel time differs if an employee elects to drive rather than travel as a passenger. In brief, if an employer offers passenger transportation but the employee asks permission to drive, the employer may count as hours worked either the time that the employee spends driving or the time that the employer would have had to count as hours worked if the employee travelled as a passenger. Likely, most employers will choose the shorter measure.
The WHD addresses two other scenarios, each dealing with employee commutes to and from work. In one, employees travel from their home to the office to get their job itineraries before traveling to the customer’s location. In the other, employees drive from their home to multiple customer locations throughout the day.
The WHD confirmed that (1) compensable working time generally does not include time spent commuting between home and work, even if the employee works at different job sites; but (2) travel between job sites after employees arrive at work is compensable. The analysis is the same whether employees drive a company vehicle or their own.

The Takeaway

The WHD publishes opinion letters to help employers and employees understand their rights and responsibilities. Those opinions, however, are highly fact-specific. Plus, wage and hour laws contains numerous traps for the unwary. So, employers should not draw general conclusions from opinion letters. 
Instead, to best protect the company’s interest and minimize the risk of liability, we encourage employers to consult counsel about any questions in this area that may have.


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