Question: We have a non-exempt (hourly) employee in Washington who’s going to be traveling out of town for work. What travel time hours do they need to be paid for?
Answer: The safest approach is to pay the employee door-to-door (from their home to the out-of-town destination and from the out-of-town destination back home). As we previously reported, Washington’s Department of Labor and Industries (L&I) revised its administrative policy on “hours worked” in July 2021, broadly expanding its interpretation of Washington’s travel pay requirements for out-of-town travel (see section 5 in Policy ES.C.2). The new guidance explains that door-to-door travel by non-exempt employees is considered hours worked and must be paid. The Washington Court of Appeals later applied L&I’s guidance in ruling that mechanics in Tacoma who traveled to Texas and China for special training were entitled to pay for the travel time between their homes and their hotels in Texas and China (Port of Tacoma v. Sacks, Wash App, Sept. 2021). Given this new approach in Washington, it’s important to understand how to handle travel pay in two scenarios:
Traveling out of town with an overnight stay: You must pay for all travel time from the moment employees leave their home to the moment they arrive at their final destination (such as a hotel or conference center), and from when they depart the out-of-town location to when they arrive back home. This of course is in addition to any time the employee actually works after the travel is completed. For example, if they respond to work emails at the hotel, they would also be paid for that time.
Traveling out of town with no overnight stay: Unfortunately, L&I’s guidance doesn’t define out-of-town travel, and all its examples deal with travel that involves an overnight stay. Until we have clearer guidance from L&I, we recommend paying for travel time to and from an employee’s home when the employee travels more than an ordinary commuting distance.
In both scenarios, you may be tempted to just pay for the travel time that exceeds a normal commute, but we recommend paying for all travel time when a Washington employee travels out of town beyond a normal commuting distance. Also, keep in mind that even for normal commutes (which are unpaid), once an employee reaches their first work-related destination of the day, any subsequent travel to other work-related job sites during that shift is paid time.
Unfortunately, L&I ignored comments received during its drafting process from Vigilant and others asking that the travel pay requirements not be broadened, and this change has caught many employers by surprise. If you have questions about how to pay for travel time in a specific situation, connect with your Vigilant Law Group employment attorney, and check out our Legal Guide, Compensation for Travel Time.