Archive for the ‘Commuting Time’ Category

I have blogged on many occasions about the FLSA or Fair Labor Standards Act which provides the federal laws and regulations for when employees must be paid regular and overtime and whether they should be paid on an hourly or salary basis.

One of the issues that regularly comes up is whether travel time for my employer is time for which I should be getting paid. If you are a non exempt employee (and remember just because your employer says you are does not necessarily make it so (see my prior bloggings)) and getting paid hourly, you are entitled to be paid for all hours that are part of your “hours of work” but not merely commuting.

So what is considered commuting under the FLSA:

As amended by the Portal-to-Portal Act, the FLSA excludes ordinary commuting time, or “traveling to and from the actual place of performance of the principal activity” of employment, from compensation. In contrast, and like on-call time, work completed during a commute that is integral and indispensable to a principal activity of employment is compensable. Whether an employee’s time is considered compensable work depends on whether it is spent predominantly for the benefit of the employer (“predominant benefit test”).

For FLSA-covered employees, normal commuting time from home to work and from work to home is not hours of work. Similarly, for FLSA-exempt employees, normal commuting time from home to work and from work to home is not hours of work. However, commuting time may be hours of work to the extent that the employee is officially ordered or approved to perform substantial work while commuting.

Normal “home-to-work/work-to-home” commuting includes travel between an employee’s home and a temporary duty location within the limits of the employee’s official duty station. For an employee assigned to a temporary duty station overnight, normal “home-to-work/work-to-home” commuting also includes travel between the employee’s temporary place of lodging and a work site within the limits of the temporary duty station.

Imposing even minimal requirements on employees—such as filling up the company car at a particular gas station or stopping at the post office on the drive home from work—can turn normal commuting time into compensable time under the FLSA. That’s true even if the company-mandated “pit stop” doesn’t lengthen employees’ commute.

For instance in one case field engineers for a Florida county needed to drive work trucks to job sites. So, they’d first drive their own cars to the county parking garage and pick up the trucks. The county didn’t pay engineers for their time driving the county truck to the first work site of the day, reasoning that it was unpaid “commuting time.” The engineers disagreed and sued under the FLSA for back wages.

The 11th Circuit sided with the engineers, concluding that making them stop at the garage at the beginning and end of the day was “an inconvenient detour for the employees who, at the end of the workday, could not drive directly home.” That inconvenience made it paid time rather than commuting time. (Burton v. Hillsborough County, No. 10247, 11th Cir., 2006).

So don’t let your employer make you Grumpy by making you work hours that you are not getting paid for and don’t be Bashful about reporting your employer’s violations of the FLSA to the U.S. Department of Labor or an employment law attorney.

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