Compensability of Overnight Travel Time

By Joseph R. Ward III

The Fair Labor Standards Act (FLSA) has many nuances that can create legal pitfalls for employers who, through no fault of their own, are unfamiliar with each and every one of its intricate requirements. One such area is the compensability of a non-exempt employee’s time spent traveling to a location that requires an overnight stay away from his or her home.

As a general matter, the FLSA requires employers to pay non-exempt employees for their time spent working. While the FLSA does not explicitly define what constitutes “work,” the Portal-to-Portal Act provides that employers do not need to compensate employees for traveling to and from the actual place of work performance and the employee’s home, and FLSA regulations reiterate that normal travel from home to work is not compensable work time. Thus, these standards make clear that compensable work time generally does not include time spent commuting to or from work.

However, compensation for a non-exempt employee’s travel time that requires an overnight stay is subject to a different FLSA regulation that provides an employee’s time spent driving to a location that keeps the employee away from home overnight is compensable when it cuts across the employee’s workday or the employee’s regular working hours on nonworking days. The Regulation provides as follows:

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee’s workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

29 C.F.R. § 785.39.

Imagine that Pete, an hourly employee who regularly works 9 a.m. to 5 p.m., Monday through Friday, leaves work on Friday afternoon at 2 p.m. and drives three hours away from his home community to the location of a training seminar to be held the following day from 9 a.m. to 4 p.m. Immediately following the training seminar, Pete drives the three hours back to his home. Under this scenario, Pete must be compensated for the three hours he spent driving on Friday afternoon and for the one hour he spent driving between 4 p.m. and 5 p.m. on Saturday (whether the time spent at the training seminar is compensable is an issue for another day and the issue is subject to different regulations focused on not only whether the training was during Pete’s normal hours, but also whether it was job-related, voluntary, and if other work is performed concurrently). What’s more, if Pete had worked a full week leading up to the training seminar, that hour from 4 p.m. to 5 p.m. driving on Saturday would constitute overtime and, therefore, it must be paid at time and one half.

While the basic principle is fairly comprehensible, whether travel time should be compensated becomes less clear when the travel time between an employee’s home and the job site is arguably drivable immediately before and after the employee’s shift. For example, it seems objectively reasonable for an employee to drive one hour each way to and from work and less realistic when the travel time is two or more hours each way. In other words, there is room for interpretation as to the threshold amount of time needed to travel away from home to consider it “overnight” travel.

The issue becomes even murkier when the non-exempt employee regularly works on jobsites away from their home community for long durations and voluntarily travels to and from his home on his days off rather than staying at the project location. So, if our hypothetical employee Pete is assigned to a worksite three hours away from his home and he travels back and forth on the weekends, there is a possibility that the voluntary travel time would be considered compensable if it occurred during normal work hours. Thus, the employer would be responsible for paying Pete for any hours that he traveled between 9 a.m. and 5 p.m. despite the fact that such travel time was voluntarily undertaken by Pete with no ostensible benefit to his employer.

In determining the issue of whether voluntary overnight travel is compensable, courts analyze whether the employer offered to pay the employee’s living expenses while at remote work sites on nonworking days and whether the employee was aware of that option. If such an option exists and was made known to the employee, then the travel time spent driving to and from remote work sites could only be classified as “voluntary” and, therefore, non-compensable. If, however, the employer did not offer a per diem or stipend to its employees for nonworking days, or if such a policy existed but was never made known to employees, the employee may be entitled to compensation for the “required” travel time home.

In practical terms, employers should consider the most effective and efficient means of tracking their employees’ overnight travel time (a practice that in and of itself may present logistical issues) and develop policies that cover such situations including, for example, setting a lower rate of pay for overnight travel time. Of course, any such policies must also comply with minimum wage laws as well as any applicable state laws related to the sufficiency of notice that must be provided to employees prior to changing their rate of compensation.