“Baby you can drive my car, yes I’m going to be a star, baby you can drive my car, and maybe I’ll love you.”

– The Beatles

A complicated part of the wage and hour scheme revolves around compensable working time. Generally, under the Fair Labor Standards Act (FLSA”) and other government contract wage and hour laws, employees must be compensated for time when suffered or permitted to work. 29 U.S.C. § 203(g). This doesn’t normally count commuting time. But sometimes, this duty to pay even applies to time spent commuting to and from the workplace. For laborers working on job sites near the employer’s principal place of business, or at a remote facility, employers can run up costs by requiring multiple reporting places or special work obligations while commuting. A recent Department of Labor (“DOL”) Wage and Hour Opinion Letter gives guidance in navigating some of the hidden costs of compensable travel times and how to avoid them.

On November 3, 2020, the Wage and Hour Administrator of DOL penned an opinion letter discussing compensable travel time for laborers working away from the employer’s principle place of business. More specifically, the Administrator examined three different scenarios. In the first, the Foreman was required to first go to the employer’s principal place of business to pick up vital equipment that was stored there for safety, then they would drive that equipment to the job site. Sometimes, other laborers would choose to drive with the Foreman instead of driving in their own vehicles. In the second scenario, the job site was more than an hour and a half away, a Foreman would pick up the equipment at the beginning of the job and return it at the end of the job. Since it was so far, the employer would furnish housing and a meal stipend to the employees and would also allow some laborers to park at the employer’s principal place of business and drive with the Foreman to the remote job site. Finally, the third scenario discussed laborers who drove each day to the remote job site rather than accepting housing if the remote site was farther than a one and one-half hour drive. The employer asked DOL in which scenarios they were required to pay their laborers for their time driving to the job site.

DOL stated that in all scenarios the Foreman must be compensated for their time driving the equipment back and forth from the job site because the duty was an indispensable and integral part of the Foreman’s activity that he was required to perform. In scenario two and three, the employer is only required to count travel that cuts across the employee’s normal work hours as compensable. It was deemed to be compensable travel all in a day’s work. DOL uses what they have called the portal to portal time rule – once you report to the work site you are at work and all travel in a day’s work is compensable until you return to the home site.

In scenario two, if the laborer is a passenger, then the same rule applies. If the employer were to offer transportation from the employer’s facility to the remote work site, they can count as compensable time the actual time spent travelling to the worksite, or the amount of time that would have accrued if the employee would have accepted the offer of transportation. This is a worthwhile method of computing working time because it allows the employer to control compensable time even if the employee refuses the offer of transportation. In scenario two, the employee is going to the job site for the purpose of helping the employer which is why time spent commuting may be compensable.

Contrast that with the events in scenario three, where the DOL stated that the time spent commuting is not compensable. In scenario three, the laborers are using their own off time and choosing to commute long distances to spend time in a different location. In these situations, the employees are using the time for their own purposes as defined by 40 U.S.C.A. § 3142(c) and 29 C.F.R. § 5.5(a)(1). Since this time is not spent for the benefit of the employer, the travel time is no longer compensable as it was in scenario one and two. This position clarifies some prior DOL suggestions that travel time to remote sites might be compensable

DOL iterated that the “FLSA is not an inflexible bar that places employer and employee in opposition” and suggested that employer and employee interests are not always at odds. See WHD Opinion Letter 2020-16 (Nov. 3, 2020). They wrote that restrictive travel time regulations would force employers to schedule their employee’s travel time which would hardly benefit the employee in any meaningful way. This allows the employee to travel home for important dates without requiring the employer to “look the other way.” On the other hand, if the employer is solely the one benefitting from an arrangement, such as in scenario one with the Foreman picking up work-related equipment, the employer should be the party paying for that arrangement.

There is little extraordinary about DOL’s opinion letter. It summarizes some of the many travel time rules. But it represents a recent reiteration of some sensible policies. Here, it seems the DOL found a balanced solution interpreting the FLSA as well as their own previous guidance. If you want to review the letter, it can be found at https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/2020_11_03_16_FLSA.pdf