There are various factors that influence whether an employee must be compensated for his or her travel time to a new work site, or for off-site employment activity. One of the main factors to consider is whether the employee is actually engaging in travel as part of the employer’s principal activity or, whether the employee is engaging in travel for the convenience of the employer.
At the federal level, the Fair Labor Standards Act (FLSA) is the primary law governing travel pay. The standard asks whether the employee’s time is spent primarily for the benefit of the employer. It also includes time spent, even if not doing work, but under the control of the employer, such as on-site, on-call time.
Pursuant to California’s Labor Code, the standard comes down to whether the employee is subject to the control of the employer; the concept of “control” is narrower than federal standard. While the federal and state laws overlap, California’s Labor Code is of course generally more liberal and more protective of employees.
The definition of hours worked is found in the Industrial Welfare Commission Orders, and refers to the time during which the employee is subject to the control of an employer, and includes all the time the employee is “suffered or permitted to work,” whether or not required to do so. State law does not distinguish between hours worked during the “normal” working hours, or hours worked outside “normal” working hours, nor does it distinguish between hours worked in connection with an overnight out-of-town assignment.
Under state law, if an employer requires an employee to attend an out-of-town business meeting, training session, or any other event, the employer cannot disclaim an obligation to pay for the employee’s time in getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transportation, in traveling to and from this out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board is, under such circumstances, time spent carrying out the employer’s directives, and thus, can only be characterized as time in which the employee is subject to the employer’s control.
On the other hand, time spent taking a break from travel in order to eat a meal, sleep or engage in purely personal pursuits not connected with traveling or making necessary travel connections (such as, for example, spending an extra day in a city before the start or following the conclusion of a conference to sight-see), is not compensable.
Commuting To and From the Workplace
Typical commuting from an employee’s home to his or her workplace is not compensable travel time. However, travel time longer than the employee’s typical commute to work can be compensable when an employee is required to report to a different temporary work site, or if there is a change in workplace location. This does not mean that if it takes the employee two hours instead of the usual one hour to get to work because of a traffic accident, that the additional hour is compensable. In circumstances of extraordinary commutes, the employee must be compensated for any additional time it takes to travel to the new work site in excess of his or her normal commute time. However, if the new temporary work site is within reasonable proximity to the usual work site, then travel time is not compensable unless it is in excess of the employee’s normal commute time.
Whether or not an employee is provided a company vehicle, or uses his or her own transportation, can also affect whether travel time is compensable. If a company provides an employee with a company vehicle, the travel time to the usual workplace is not compensable, even if the employee must stop to perform minor tasks, such as refueling the vehicle. However, if an employer requires its employees to meet at a particular location, to use company transportation, and prohibits its employees from using their own transportation, then such travel time is compensable. Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000) An example of this would be when employees work at an amusement park, and are required to park a mile away and take a shuttle bus from the parking lot to their place of work. In this case, the time commuting on the company shuttle would be compensable.
An employer is not required to compensate an employee for time spent in company-provided transportation from a pick up point to the work site, so long as the ride-sharing participation is entirely voluntary. If, for instance, an employer provides a bus for workers that picks them up at a subway station and transports them to work, but the employee could get there by using his own transportation, such as a car or bike, the employer is not required to pay compensation.
Once an employee reports to work, any work related travel occurring during the day is compensable.
Out of Town/Overnight Travel
Under California law, overnight or out of town travel is always considered compensable work time if the employer is requiring the employee to attend the business-related event. The employer must compensate the employee for time spent traveling to and from the out of town location, including time spent in airplanes, trains, buses, cabs, or another mode of transportation, and time spent waiting to purchase a ticket, check baggage, or board the mode of transportation. However, the employer does not need to compensate the employee for regular meal periods, time spent sleeping, or for time spent engaging in other leisure and personal activities while traveling.
Compensating Employees The rate at which an employer must compensate its employees for travel time depends on the nature of the compensation agreement between them. If the employer has agreed to pay the employee a fixed hourly rate, then the employer must generally pay the employee for travel time at that hourly rate. However, prior to traveling, the employer and employee may choose to agree to a separate rate of pay for travel, as long as that rate does not fall below minimum wage. For example, employers who want to have the employees agree to be compensated at minimum wage for travel time should advise the employees of this ahead of time in a separate agreement, or as part of the Employee Handbook which the employee signs.
Salary non-exempt employees must be paid at the appropriate overtime rate for any hours worked in excess of 8 in a day or 40 in a week, computed by converting the weekly salary to an hourly rate. (Labor Code Section 515)
All necessary expenses incurred in connection with employer-required travel must be reimbursed to the employee. (Labor Code Section 2802)
Before determining whether to pay the employee at minimum wage for travel time, it is recommended to have a qualified employment lawyer determine whether the employee is properly classified as an exempt or non-exempt employee, and whether the worker is actually an employee, as opposed to an independent contractor. Failure to make the proper determination can lead to costly wage and hour claims, in which the plaintiff may be awarded damages, attorney’s fees, and penalties from the employer.
Do You Have More Questions About Travel Time?
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This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.
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