Travel time as working time

Scope

Most state laws do not address travel time (though some do), and the federal law applies. Federal law mainly addresses three types of travel: 1) During a normal work day, 2) To another city in the same day, and 3) Overnight travel to another city.

Regulatory citations

• 29 CFR 785.36 — Home to work in emergency situations.
• 29 CFR 785.37 — Home to work on special one-day assignment in another city.

Key definitions

• None

At the destination

Any “work” performed at the destination is also working time. However, you could establish that a hotel is a “home away from home” and that the employee’s time traveling from the hotel to the meeting location is a normal (unpaid) commute. This is not directly addressed by regulation, but it would not be unreasonable (though some states might consider this commute as time given to benefit the company).

Summary of requirements

During a normal work day. A normal commute to work and back is not typically considered work time. However, travel during the workday is “work.”

For example, if an employee normally works 8:00 a.m. to 5:00 p.m., and must drive 15 miles for a meeting at 3:00 p.m., the travel time counts as work (it takes place within normal work hours). However, if the meeting ends at 5:00 p.m. and the employee goes straight home, this is probably a normal commute and does not count as “hours worked,” assuming the travel is not much farther than a normal commute (usually, within the same city or community).

To another city in the same day. Travel time to another city is working time (see 785.37). However, travel from home to an airport or other terminal can be considered a “commute” that is unpaid.

For example, an employee might drive from home to a train station, take a train to another city for a conference, and return to the train depot before driving home (all in the same day). Time spent driving to and from the train station can be considered a normal commute (assuming it is within the same community) and would not have to be paid working time. However, all other travel time (on the train and at the destination) counts as “hours worked” that must be paid, even if those hours are “outside” the normally scheduled hours (i.e., the train leaves at 7:00 a.m. and returns at 6:00 p.m.). Of course, normal meal breaks do not count as “hours worked.”

Overnight travel to another city. In most cases, all travel time to another city for an overnight trip counts as paid working time. There is a federal exemption for time spent as a passenger on public transportation that occurs outside of the employee’s normal working hours.

To use the above example, suppose the employee took a train to another city and stayed overnight. If this employee normally works from 8:00 a.m. to 5:00 p.m., any time spent as a passenger outside of normal working hours (i.e., after 5:00 p.m.) does not technically have to be counted as working time and does not have to be paid (this does not apply to same-day travel, only for overnight travel). Note that the “passenger” exemption is part of federal law only. States may not recognize this provision.

Time spent waiting (i.e., waiting for a flight at an airport) would not fall under the exemption for time spent as a passenger (even if it occurs outside normal hours) and would count as working time. If travel to another city occurs during normal work hours on a non-work day (i.e., the employee takes the 11:00 a.m. train on a Sunday) it also counts as hours worked.

At the destination. Any “work” performed at the destination is also working time. However, the company can establish that a hotel is a “home away from home” and that the employee’s time traveling from the hotel to the meeting location is a normal (unpaid) commute. This is not directly addressed by regulation, but it would not be unreasonable (though some states might consider this commute as time given to benefit the company).

Emergency call-in. If the employee is traveling to a customer facility, the employer must start the clock when the employee leaves home.

However, if the employee is reporting to a regular company location, the answer is unclear. The federal Wage & Hour Division has literally refused to offer guidance. The “safe” option is therefore to start the clock when the employee leaves home. Here is the applicable regulation (bold added):

• 29 CFR 785.36 — Home to work in emergency situations. 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.

Essentially, the issue has been left up to states (or courts) to decide on a case-by-case basis. Most state labor agencies will accept wage claims for unpaid working time, and could rule either way. Often, state agencies take a position that is most favorable to the employee. The safest course of action, therefore, is to start the clock when the employee leaves home.

State laws. States may adopt a definition of “hours worked” that is more restrictive than the federal requirements.

For example, California defines the term to include “time during which an employee is subject to the control of an employer” and this includes all time spent in travel. In California, the above exemption to time spent as a “passenger” on public transportation does not apply – such time must still be counted as hours worked. Even time spent in a commute during an overnight trip can be considered working time under California law.