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Am I Entitled To Pay For My Time Spent Travelling To Work?

by | Jan 6, 2023 | Employment Law, Federal Law Update, Wage: Minimum Wage, Wage: Overtime |

As always when dealing with employment laws, the answer is maybe. It depends on the facts regarding the travel in question. This answer may be less than satisfying, but we can start with the presumption that under the Fair Labor Standards Act (“FLSA”) and Ohio Minimum Fair Wage Standards Act (“OMFWSA”), most travel is not compensable unless you can show one of the following:

  1. Your job principal duties included travelling; or
  2. You were performing work for the employer’s benefit during the travel; or
  3. The travel was “all in a day’s work.”

Applying these concepts to the facts of any case can be nuanced and requires an understanding of how courts have interpreted these “exceptions” in the past. On one hand, there is the ordinary “to/from” travel most people do each day to get to work, which is expressly not compensable under the Portal to Portal Act of 1947. On the other hand, there is travel between work sites during the day, or travel required by your employer as part of your job. Comparing and contrasting the outcomes in two cases – one recently decided by the United States Court of Appeals for the Federal Circuit, Bridges et al v. United States, and another litigated by Spitz in the United States District Court for the Northern District of Ohio, Wilson et al v. PrimeSource Health Care of Ohio, is very helpful to understanding how courts look at these issues.

What is a principal job duty?

In Bridges, the employees were security officers for a federal prison. There was no dispute in the case that their primary job duties were to watch the inmates of the prison and to provide security work. However, the security officers would occasionally be asked to perform additional work at local hospitals guarding inmates who had been admitted. While the security officers were paid overtime for the hospital work, they were not paid for the time it took them to drive from the prison to the hospital. Importantly, the hospital work did not always get scheduled for exactly after prison shifts ended and could be scheduled to start several hours after the prison work ended.

The Court of Appeals was quick to point out that given the security officer’s own admissions regarding their principal job duties, their argument that travelling was part of their principal job duties was unfounded:

Congress passed the Portal-to-Portal Act in part to explicitly exclude certain travel from the employer liability created by the FLSA. Relevant here, the Portal-to-Portal Act clarifies that travel “to and from the actual place of performance of the principal activit[ies]” is not hours of work. 29 U.S.C. § 254(a)(1). Here, no one disputes the officers perform their principal activities at the prison and local hospitals. And therein lies at least one degree of separation: Congress distinguished the “to and from” travel between such places from the places themselves, where “the principal activit[ies]” are “perform[ed].” Id. That means the officers’ travel in this case cannot be part and parcel of their principal activities.

Even Appellants appear to admit that their principal activities don’t include this travel: they repeatedly characterize their principal activities only as guarding inmates and providing security. And that makes sense. Appellants are, after all, correctional officers in a prison. Guarding inmates and providing security is the kind of work they are “employed to perform.” 5 C.F.R. § 550.112(a).

By contrast, in Wilson, the employees – travelling medical assistants – were mandated to carpool to multiple locations each day in employer provided vehicles; further, job postings by the employer stated that “transporting equipment and supplies” was one of the employee’s “primary responsibilities” in a job posting:

“[O]rdinary commute time [is] non-compensable under the FLSA.” [However], “an employee is entitled to payment for any work that the employer requires the employee to perform during the commute.” This exception creates a genuine dispute as to a material fact. On one hand, PrimeSource listed “transporting equipment and supplies” as one of the CAs’ “primary responsibilities” in a job posting. The [employees] also testified they participated in “game planning” conference calls during the commute. On the other hand, a jury could reasonably conclude that that driving a vehicle with some equipment and chatting on conference calls is de minimis work or a non-[principal] activity…[t]his is a genuine fact dispute for the jury to decide.

When is travel “all in a day’s work?”

The security officers in Bridges next argued that even if their driving was not a principal activity, they should still be compensated because the travel was “all in a days work,” that is, it was tantamount to driving between two job sites during the same work day. Because there was no evidence that the security officers were actually required to do any work during the travel or that the travel was part of the security officer’s principal job duties, the security guards also argued that the travel was “employer required” because if they did not travel, the government would not be able to provide security officers at hospitals. Recognizing that the security officer’s argument would render nearly all travel time compensable, the Court of Appeals was not buying it:

As an initial matter, we note that Appellants’ continuous-workday argument appears to rely on an incorrect assumption about the definition of a “continuous workday.” Appellants seem to assume that their “workday” can only be defined as starting when the prison shift starts and ending when the immediately following hospital shift ends and that those shifts, together, thus form a “continuous workday.” But this assumption is mistaken. A “continuous workday” in this context is defined by Congress, OPM, and the Supreme Court, which have all defined a “continuous workday” by the start and stop of “principal activities.” So Appellants’ two-shift “workday,” as they think of it, need not be a “continuous workday,” legally. Indeed, § 551.412(b) explicitly contemplates what amounts to noncontinuous workdays: it recognizes that two blocks of “compensable … hours of work,” like those book-ended by principal activities, may nonetheless be separated by a noncompensable activity.

Appellants primarily offer three different regulatory bases to assert that their travel time between shifts constitutes other “hours of work” within the OPM regulatory regime, but each basis suffers from the same fundamental flaw: the officers’ assertion that their travel is “hours of work” boils down to the assertion that commuting is “hours of work.” But that’s precisely contrary to the Portal-to-Portal Act’s instruction that commuting time—i.e., time spent “traveling to and from the actual place of performance of the principal activit[ies],” 29 U.S.C. § 254(a)(1)—is not covered by the FLSA, and the officers fail to provide any kind of limiting principle that distinguishes the necessity of the travel at issue in this case from the general necessity of commuting.

* * *

Each of Appellants’ primary arguments depends on an employer’s generic need to staff shifts. But to find that employee travel is “hours of work” so long as an employer “needs” a shift “covered”; or that the employee couldn’t get to that shift “without that travel”; or that the employer “needs a qualified” employee to cover a shift—all of these would be to say that all travel “to and from the actual place of performance of the principal activit[ies]” requires compensation under the FLSA. See 29 U.S.C. § 254(a)(1). Yet we know that can’t be true. Congress said so. Id. Accordingly, the officers fail to persuade us that their travel time falls within these OPM-defined “hours of work.”

(Emphasis added).

By contrast, in Wilson, travelling was part of the job itself, required by the employer in the furtherance of the employee’s job duties, and it occurred mid-shift – that is, after the employees had already started performing their job duties each day, but before they had completed those job duties at the end of the day:

Under the FLSA, when “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 days work, and must be counted as hours worked.” Indeed, “[o]nce an employer requires employees to report to a designated meeting place, such as the shop, travel time to jobs sites are part of a day’s work and compensable under the FLSA.”

Here, PrimeSource issued a memo directing CAs that they “must meet the PA within a 30-mile radius of the PA’s residence. Assess where the visit is located and agree upon a location to ride share.” PrimeSource required CAs and PAs to meet at designated locations. Consequently, the Plaintiffs’ subsequent travel time to job sites is compensable.

What Should I Do If My Employer Is Not Paying Me For Compensable Travel Time?

As Bridges and Wilson demonstrate, applying the Portal to Portal Act to claims for unpaid travel time – particularly as it relates to the fact intensive inquiry into an employee’s primary job duties – is difficult. Most attorneys have never dealt with the FLSA and don’t know much about wage claims or what the law requires, so it is hardly surprising that many employers don’t understand the law either. This is why it so important to call the right attorney.

Importantly, wage claims have a “rolling” statute of limitations and every day you wait is a day lost on your claim. If you believe that the company you work for has failed to pay you all of your wages or has misclassified you, call the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. (Read: What is the Spitz No Fee Guarantee?) Call our lawyers in Cleveland, Columbus, Detroit, Toledo, Cincinnati and Raleigh to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and fighting for their unpaid wages.


The wage theft 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?”, “Can I be fired for demanding my overtime pay”, “Can the company that I work for make me pay them back part of my paycheck” or “What do I do if I am not being paid minimum wage”, 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.

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