I’m sure you’ve been reading enough about COVID or how a Biden administration might swing the workplace pendulum back towards employees and unions (I think it’s a good bet), so let’s focus on the Fair Labor Standards Act (FLSA) for now. Can you imagine a time when employees will have to travel again for work? Well, strap on your seat belts because, on November 3, 2020, the U.S. Department of Labor issued an opinion letter on compensating travel time!
Here’s the breakdown.
Travelling to/from home at start/end of day:
The easy stuff is the travelling from home at the start of the day and back home at the end of the day. That time is not compensable work time, even if the employee travels locally from home to a job/customer site.
However, if the employee travels from home to the office and then from the office to a customer site, the time spent travelling from the office to the customer site is compensable work time.
If the employee does a day trip to another city or on a special one-day assignment, the travel time is compensable. However, the employer can deduct the amount of time that the employee would have normally spent commuting to the regular worksite.
Spending the night:
If the employee travels and has to spend a night away from home, special “away from home” rules apply. If the time the employee spends travelling on an away from home trip crosses his or her normal work time, even if on a non-workday, the time is compensable. For example, if the employee’s regular hours are Monday through Friday, from 8:30 a.m. to 4:30 p.m., any time the employee spends traveling away from home between 8:30 a.m. and 4:30 p.m. counts as compensable time, even if on a weekend. To avoid having to compensate the employee for travel time, the employer could require the employee to travel after 4:30 p.m.
The November 3, 2020 Opinion Letter suggests another option. The employer can offer public transportation to the remote job site on the employer’s preferred schedule. If the employee declines the offer and decides to drive him or herself, the Opinion Letter explains that the employer can count as compensable time either (1) the time the employee’s travel actually took or (2) the time that would have been considered compensable if the employee had accepted the offered transportation. Given concerns about public transportation during the pandemic, employees who must travel out of town for work may opt to drive rather than use public transportation. The new Opinion Letter provides employers with a means of controlling their costs without forcing the employee to use public transportation outside the regular work hours.
It will be interesting to see how the frequency and quantity of work travel will compare to how it was pre-pandemic. Hopefully this opinion letter shed some clarification and guidance for when travel picks back up.
For those of you travelling next week for Thanksgiving, I wish you a safe trip. (Unfortunately, your vacation is probably not compensable under the FLSA!)