Travel Time Away from Employee’s Home Community

Nathan Eisenberg

Under the Portal-to-Portal Act, Employers are not typically required to pay employees for travel time to and from their jobs, before and after their regular work day.  29 U.S.C. 254(a).  This means that compensable worktime generally does not include time spent community to or from work.

Despite this rule, there is an exception when employer require employee to travel away from their home communities overnight.  Under DOL regulations, “Travel away from home is clearly worktime when it cuts across the employee‘s workday.”  29 CFR §785.39.  This means that employees must be paid for all time spent in travel during the hours which match the employee’s “regular hours of work.”

On April 12, 2018, the U.S. Department of Labor (DOL) issued an opinion letter addressing what happens when employees who travel do not have “regular hours of work.”    According to the opinion letter, there are at least different ways of making such determination:

  • Review the employee’s time records to determine the normal hours of work during the most recent month of regular employment. If the records show typical hours, the employer may consider those as the normal hours.
  • If the records do not reveal normal hours, the employer may chose the average start and end times.
  • The employer and employee (or the employee’s representative) may negotiate and agree to regular hours.

As the letter makes clear “this is not an exhaustive list of the permissible methods” for determining the “regular hours of work.”  However, if an employer uses any of these methods the DOL will not find a violation for compensating employees’ travel only during those working hours.

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