H. Travel Time

The easiest way to think of the travel time regulations is to remember that basically, any travel on company business that cuts across the normal workday is compensable time worked, regardless of whether such travel occurs on a day the employee is normally scheduled for work.

The wage and hour regulation at 29 C.F.R. 785.33 states that whether time spent in travel must be considered working time depends upon the kind of travel involved. The general rule is found in 29 C.F.R. 785.35, which provides that "normal travel from home to work is not work time". That means that the normal commute from home to work and vice-versa is not compensable. However, 29 C.F.R. 785.36 states that home to work travel and back again that falls outside of the regular hours may be compensable hours worked. For example, if the worker is called back to work somewhere on an emergency basis for one of the employer's customers and must travel a "substantial" distance, the travel time would be compensable. The regulation does not provide that all such travel time is compensable; the decision would presumably be made on a case-by-case basis. Similarly, a special temporary assignment in another city would involve compensable travel time, according to 29 C.F.R. 785.37, but the employer could disregard the time corresponding to the normal home-to-work commute and the time spent on meals.

Time spent traveling between worksites during a workday is compensable under 29 C.F.R. 785.38. For example, if a worker reports to the main office to start the day and is then told to report to another job site, all time spent traveling to that worksite and back again to the main office will be paid. Some workers normally report to a number of jobsites each day as part of their duties; all such time is compensable. If the worker does not have to report back to the main office after finishing at the last jobsite, but instead returns directly home, the time spent returning home is not compensable.

Many questions arise concerning travel to other locations involving overnight stays. 29 C.F.R. 785.39 states that "travel away from home is clearly work time when it cuts across the employee's workday. The employee is simply substituting travel for other duties." However, if the employee travels as a passenger outside normal working hours, the time is not compensable. An employee who serves as a driver or a pilot for other employees would be paid for the entire travel time. This same rule applies even in the case of travel on days not normally worked. For instance, if the normal hours are 8 am to 5 pm from Monday through Friday, and the employee must perform job-related travel on Sunday from 3 pm to 7 pm, the employer would need to pay only for the time from 3 to 5 pm. Similarly, work performed while traveling must be counted as hours worked under 29 C.F.R. 785.41.

According to a DOL wage-hour opinion letter issued on September 21, 2004, travel between an out-of-town worksite and the employee's home that the employee undertakes for his or her own personal convenience, i.e., voluntarily, is not compensable.

The travel time should be paid at the employee's regular rate of pay; however, it is permissible to have a wage agreement whereby employees are paid at a lower rate (at least minimum wage) for compensable travel time and other types of non-productive work time, as noted in 29 C.F.R. 778.318(b) and a DOL administrative opinion letter dated January 22, 1999 (BNA, WHM 99:8211). However, any such agreement should be clearly expressed in a written wage agreement signed by the employee, and the time so distinguished must be carefully and exactly recorded. Further, if such work results in overtime hours, the overtime pay must be calculated according to the weighted average method of computing overtime pay, as provided in 29 C.F.R. 778.115 (see the topic "Employees Working at Two or More Rates" in the article "Calculating Overtime Pay" in this book). Due to the complexity of the overtime calculation method necessary and the recordkeeping involved, any company attempting this should have the agreement prepared with the assistance of an attorney experienced in this area of the law.

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