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Top Wage & Hour Lawyer Reply: Should I Be Paid For Travel Time?

| Jun 12, 2014 | minimum wage violation, overtime time violation, tipped employee violations |

Best Ohio Wage & Hour Attorney Answer: Am I entitled to pay for the time I spend travelling for my job? Am I entitled to pay for time I spend out of town or out of state for my job? What should I do if I am not getting paid for my travel time? How do I find the top Ohio overtime lawyers?

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As it turns out, everyone travels at least a little bit as part of their job (except for people who work exclusively from home). If you drive a car, walk, take a bus or a train, or ride a bike to and from your job, you are travelling as part of your job. However, most of us do not think of it that way, because it is just something you have to do. For that reason, most people understand that they are not entitled to pay for the time they spend travelling to and from work, even if that time is significant.

But what if you travel to job sites far from home or the office, or stay the night somewhere for work? Depending on the circumstances, the Fair Labor Standards Act (“FLSA”) may require that your employer compensate you.

First, as our wage and hour lawyers have discussed before, outside sales people are not covered by the FLSA, and any time they spend travelling for work is generally not time they can get paid for. This is also true for exempt employees who are paid salaries. (But beware, not all people paid a salary are exempt!)

However, if you are non-exempt, the FLSA contains several regulations covering a variety of situations in which you may be entitled to pay for time spent travelling.

The first regulation, 29 C.F.R. § 785.35, concerns the questions at the top of this wage blog – the typical drive to and from work. Generally, this time is not time you can be paid for (“compensable”), regardless of whether the travel is to a fixed location or not. This statute provides:

An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.

The next regulation, 29 C.F.R. § 785.36, involve situations in which the employee is called back to work due to an emergency. Generally speaking, if you have already gone home for the day, and are then called back in, the time you spend travelling to and from work is compensable. This statute provides:

There may be instances when travel from home to work is overtime. For example, if an employee who has gone home after completing his day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer’s customers all time spent on such travel is working time. The Divisions are taking no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to his regular place of business to do a job is working time.

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Up next is 29 C.F.R. § 785.37, which deals with situations in which the employee is sent to another city for a special assignment or training. This time is usually compensable because the travel is for the employers benefit. However, the employer can deduct your usual travel time to and from work from this time when calculating your pay. Thus, if your drive from home to work is usually half an hour each way, and the special trip is two hours each way, then the employer only has to pay you for one and a half hours each way. This time is fully compensable, however, if it occurs during your regular work hours. This section of wage law provides:

A problem arises when an employee who regularly works at a fixed location in one city is given a special 1-day work assignment in another city. For example, an employee who works in Washington, DC, with regular working hours from 9 a.m. to 5 p.m. may be given a special assignment in New York City, with instructions to leave Washington at 8 a.m. He arrives in New York at 12 noon, ready for work. The special assignment is completed at 3 p.m., and the employee arrives back in Washington at 7 p.m. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer’s benefit and at his special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the “principal” activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call (described in § 785.36), or like travel that is all in the day’s work (see § 785.38). All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to his regular work site, the travel between his home and the railroad depot may be deducted, it being in the “home-to-work” category. Also, of course, the usual meal time would be deductible.

But, what if the boss has you meet at a central location or at the shop and then travel to the real work site? This is covered by 29 CFR 785.38, which essentially provides that any travel between the first and last spot designated by the employer is time that you should be paid for. This wage and hour statute provides:

Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer’s premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked. (Walling v. Mid-Continent Pipe Line Co.,143 F. 2d 308 (C. A. 10, 1944))

What if you have to travel overnight to another state or town that is far from home? 29 C.F.R. § 785.39 states that this time is only compensable in certain situations: (1) when the travel time includes hours which fall during your regular shift, (2) when travel time occurs on a non-work day during hours you would normally work, (3) the employee travels by car and is the driver, or (4) when the employee travels by common carrier (public transportation or by airplane) during regular work hours. Finally, the FLSA makes time spent working while travelling (say, by working while travelling by plane) compensable. This wage law provides:

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee’s workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

On this point, 29 CFR 785.41further provides:

Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.

If you believe that your employer is not paying you all of your wages for all of your travel time; or you lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws; or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.