When does a commute become paid working time?
Two provisions of the Fair Labor Standards Act (FLSA) that otherwise appear simple sometimes come into conflict. Employers don’t have to pay their non-exempt (hourly) employees for an ordinary commute to and from work, even if an employee reports to different locations. Companies do, however, have to pay such employees for travel that they require as part of the job, including travel that is substantially longer than an ordinary commute.
This raises the question: At what point does an employee’s drive to an alternate work site become “substantially” longer than an ordinary commute? The FLSA doesn’t offer much clarity, and state laws may add further confusion.
For example, in California, if an employee is assigned to an alternate location for less than a month, and if the drive is substantially longer than the employee’s usual or customary commute, the extra travel time must be paid. However, the state does not define what constitutes a “substantial distance.” One potential standard to consider is whether the additional time could reasonably be recorded in the company’s payroll system.
Given this uncertainly, companies may face a situation in which an employee claims that additional drive time should be paid, while the company believes that the drive is an ordinary (unpaid) commute. A recent case before the Connecticut Supreme Court addressed such a disagreement.
A plumber typically traveled one hour each way between home and his first job site of the day (those job locations were assigned by his employer). He eventually sued for back overtime pay, claiming that the two hours of drive time per day should have been paid. This would have added 10 hours of overtime every week.
The court held that he was not entitled to wages for his daily drive time, stating that “the distance he traveled from home to the various job sites was within the normal commuting area for the [company’s] business” (Sarrazin v. Coastal, Inc.). From this ruling, an ordinary commute may include the distance or time that the employee could reasonably expect to travel as a normal part of the job.
Fixed or variable locations
For employees who usually report to the same fixed location, employers don’t control the duration of the ordinary commute; as a result, the company doesn’t have to pay for that time. Employees choose where to live, and their commuting times may range from a few minutes to more than an hour. If such an employee is infrequently required to travel a substantial distance to an alternate worksite, the employer will likely have to pay wages for the extra drive time (infrequent travel is unlikely to be viewed as “ordinary” commuting).
For employees who regularly report to different job sites (variable locations), factors such as the company’s usual business area and the frequency of changes to reporting locations may impact whether the drive is an ordinary commute. A substantial increase in the required driving distance could create an obligation to pay wages for the extra time, particularly if the employee drives the extra distance only occasionally (perhaps less than once a month).
Since the FLSA regulations use the undefined term “substantial distance” to evaluate whether an employee’s additional drive time should be paid, companies are left to make their own assessment for each situation.
Employers should consider whether the travel distance is a common and expected part of the job, or whether the extra driving time is an infrequent occurrence. Also, they should consider the actual amount of time involved. Disregarding a few extra minutes should be reasonable, but disregarding an additional hour may be challenging for an employer to justify.
About the author: Ed Zalewski is an editor at J. J. Keller & Associates, Inc., a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Zalewski specializes in employment law issues such as discrimination and harassment, overtime, exemptions, and labor relations. He is the author of three guidance manuals (Employment Law Essentials, Employee Relations Essentials, and Fair Labor Standards Act Essentials). For more information, visit www.jjkeller.com/hr and www.prospera.com.
Legal Disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.