Question: We require one of our hourly employees to occasionally travel to some of our other facilities for a couple of days at a time. The employee generally spends the morning driving from their home to the remote facility, spends the afternoon working, stays in a hotel overnight and then spends the following morning working and the afternoon driving home. Can we count the travel time from the employee’s home to the remote facility as a normal commute and not include it as hours worked?
Answer: No. Both federal regulations and some state laws have something to say about this. Under federal law, when an employer requires its employee to travel away from home overnight and that travel “cuts across” the employee’s workday—meaning it occurs during their “normal working hours”—the employee is entitled to compensation. (See the U.S. Department of Labor (DOL)’s regulations on travel time away from the home community at 29 CFR 785.39.) If the employee’s driving time is during their typical work hours, then it must be compensated. A recent case affirmed this longstanding DOL rule. A staffing agency sent skilled tradespeople to client worksites for days-long or weeks-long assignments and didn’t pay the employees for their travel time when they moved from one assignment location to another. The staffing agency argued that their travel time was normal commuting time and didn’t have to be counted as hours worked. The court disagreed, reminding the employer that in a normal commuting situation the employee has to return home at the end of the workday. The court further explained that travel away from home is clearly worktime when it cuts across the employee’s workday (Walters v. Professional Labor Group, LLC, 7th Cir, Oct. 2024).
In addition to complying with the federal rules on travel time, familiarize yourself with state rules as well. If this employee had been based in California or Washington, the travel time would have counted as hours worked regardless of whether it cut across a workday. (See California Department of Industrial Relations Opinion Letter (Dec. 7, 1989) and Washington Department of Labor and Industries Employment Standards Administrative Policy ES.C.2, Hours Worked (July 19, 2021).)
Don’t forget about overtime either. Any compensable travel time should be treated as time worked for overtime purposes. See our Legal Guide, Compensation for Travel Time, for further guidance on federal and state travel time rules and contact your Vigilant Law Group employment attorney with any specific questions.
