VANNOY:

Travel, pay compliance, what you must pay for and why. So this is a topic that I think most employers just don’t even really think about. If travel is a regular component of your employee’s job, you probably do, but it’s those rare circumstances that they travel in a job that travel is not a main component of the job. This is the area that employers get in trouble and I think more frequently than you might think. So great guest today if you’re a regular watcher of the show, Brian Schenker. Brian is a New York based attorney with Jackson Lewis. His practice focuses on representing employers on a wide range of workplace matters, as well as preventative advice and counseling. Brian has extensive experience defending class and collective action lawsuits under federal and state wage and hour laws. He has successfully defended wage and hour audits conducted by the US and New York State’s Departments of Labor. And Brian regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment, and retaliation. Welcome to show O’ Brian.

SHENKER:

Happy to be here, Mike.

VANNOY:

All right. So let’s start with maybe a definition. I think a lot of business owners have no idea that there is even law around this, and it is, it’s part of the Fair Labor Standards Act, the granddaddy of a mall for HR laws, the FLSA. What is the FLSA definition of travel pay,

SHENKER:

Right? So no, that’s a great place to begin. And so we start with the FLSA, right? And let’s start with the broadest definition of work and compensable work, which is any time that the employee is suffered or permitted to work, right? So this is a very broad definition. Basically, the employer must compensate an employee for any actual work they do or work they perform that the employer should have known. And so we had that law in the books, and basically what it FLSA says when the employee is completely relieved from work long enough to enable him to use that time effectively for his or her own purposes, that’s when their day is done. So we had the FLSA saying this, but that didn’t provide much information on what travel time is. So almost 50 years ago now, back in 1974, the portal to Portal Act, it was passed, and that’s small. It’s a companion to the FLSA. A lot of times we don’t even distinguish sometimes between what’s in the F-M-L-S-A versus what’s in the portal to Portal Act. They’ve kind of merged. But what the portal to Portal Act did was clarified that certain activities are not compensable working time under the FLSA. And so what the Portal Act really said was that activities that are preliminary or post preliminary are not necessarily things that employees need to be compensated for.

So for instance, just a few things. So we’re talking about travel time potentially and other things potentially washing up before work or washing hands or doing certain things. Those may or may not be compensable post and preliminary activities. That’s what the Portal Act tells us. And then it gives us this broad rule concerning travel time and many legal answers. The answer is going to be, it all depends on the type of travel involved.

VANNOY:

All you lawyers are alike. It depends.

SHENKER:

That’s right. But what I can tell you, the solid rule that we can take from this is that employers are not required to pay wages for time spent traveling to and from the place of performance of the principal activities that the employee performs either at the beginning or end of the day. So that’s the general rule. Look, there are some caveats to that that we will explore today, but the general rule is beginning of the day, end of the day, driving from home to the job site or from the job site to home typically is not compensable. And that’s whether or not an employee has one fixed job site or on various days might be going to different job sites. The home to commute trip is generally not compensable. So that’s what we have, that’s what the portal to portal Act and that they tell us. And then from there, we have a lot of either case law that’s developed, but also the US Department of Labor has issued regulations and provided examples of various types of travel that can come up in the course of employment and whether that type of travel is compensable or not.

VANNOY:

So I got a million questions, but I probably don’t want to hijack it yet. I would ask you maybe to start with what do you see as the most common use cases here? But what’s popping to mind is like, okay, I don’t get paid to go to and from my job, whether it’s retail or an office, if it’s my regular location. And then I think I heard you say, even if it’s different locations, so if I work for a retailer in town, and this one’s a 10 minute commute, this one’s a 30 minute commute, that’s not compensable, it’s just driving to work. But I’m curious about what if it’s someplace that’s not normal part of my schedule, this retail location is an hour away, or maybe I show up to one location midday have change to another location, the drive time in between. That’s kind of where my head is starting at. But maybe the best place to start would be where do you see employers get themselves in trouble most frequently? Let’s start with the most common use cases.

SHENKER:

So yeah, Mike, great question. And I think, look, the first part is I think the commuting between home and work. So generally that’s not going to be compensable, but there are things that can trip up an employer in making some of this commute time compensable. And so one I thing that comes to mind is a lot of jobs have a policy or procedure where employees report to a site before they get to the work site. So maybe everyone drives to one central location and then they get in a van to go to the work site from there. That’s the type of thing I’m envisioning here. And that can create an issue for employees because once they travel and they get to that initial meetup site, typically that’s when the law is telling us that their workday has begun and that they should be compensated from that point forward. So that’s certainly one thing that I see quite often where employees are required to travel somewhere first. It might not be the site they spend working on for the whole day. Maybe they need to go to the facility, get some tools, and then go to the site and that they’re not compensating them for the travel time from that meeting location or that first facility to the actual work site. So that’s certainly one. And look, on the flip side, we see it on the way home.

If an employee leaves the work site at 6:00 PM and then instead of going straight home, they to then go back to the yard and drop off a vehicle or drop off materials and perform some tasks there, then that isn’t that drive from the work site to the facility. That’s not end of the work time. That’s not compensable because they haven’t been relieved of all duties yet. So oftentimes that bit of work that might be required or meeting at a site before or after the job, that’s an area where employers certainly can get tripped up.

VANNOY:

So Brian, how should employers think about this? I suspect it’d be really, really hard. We’re going to make an attempt at maybe describing the most common use cases and don’ts I guess, but we can’t come up with in describing list every single edge case here. So what are the protocols? What are the rules of engagement that employers should be thinking about that determine assuming there’s some type of litmus test here to determine these things?

SHENKER:

Right. No, look, it’s a great question, and I think you’re right, Mike, that what we run into with respect to travel time is that the travel time your company might be dealing with may fall in one of the several areas that the DOL has addressed in its regulations, but it’s also likely that it might not fall right within one of those. And if the facts are different by just a little bit, that can change the whole outcome. So what I tell employers is, look, compensation for travel time, the legal question of compensability might not be something you can determine on your own, but you can get up to that point on your own. So the first step employers should really do the framework for this is looking at your various categories of employees and asking yourself what travel are they performing? Where do they go? What are we doing? And so from there you identify what type of travel Are we only dealing with home to work and work to home travel, or might there be other travel during the day? And that’s the next one, Mike, right? So what employers should be thinking about is that if there is travel during the day, your immediate response should be that’s probably compensable unless there’s some reason it isn’t.

The same way that we’re looking at travel at the beginning of the day and end of the day to from and to home as being not compensable unless there’s some reason that it is. That

VANNOY:

Makes sense. So as we unpack rules of engagement here to and from work, not compensable unless it meets certain criteria, we’re going to talk about that criteria once you get to work, travel within the workday is compensable unless it meets certain criteria, and we’ll unpack that. Am I thinking about it? Right?

SHENKER:

Exactly.

VANNOY:

Exactly. Okay, so which one do you want to start with? Do want to start with the acceptable? Yeah,

SHENKER:

Why don’t we tackle some of the home and home to work commuting issues

VANNOY:

First?

SHENKER:

Perfect. So under this framework, basically the assumption is that the time spent traveling to reach your workstation, so that means driving from home park your car at the lot, just because you parked at the lot doesn’t mean you’re on the clock yet. You go into the building and now you’re clocking in. That’s when your day begins. Many employers, depending on their industries, have mandatory theft prevention or security checks, and depending on the specific factors of those time spent going through a security check, things like that may or may not be compensable. Same thing with donning and doffing of uniforms, things like that. Often if these are integral to the job duties they perform, then they’re going to be compensable. So for instance, think of someone in food processing. We have a food processing facility, and they come into work, they get in. We are not necessarily talking about travel time, but I think this helps illustrate. They have to go through some hygienic checkpoint, they need to go to locker room, change some clothing and put on a hairnet. So those are things that are integral to their work that these employees cannot perform the work under probably federal regulations unless there’s a hair net, unless they’ve put on their clean clothing. So that type of donning and doffing of equipment would be compensable most likely. Okay.

VANNOY:

Fair to say then. So if the act is a requirement of the job, and it’s such that you couldn’t have done it at home beforehand, it had to be done at the place of work compensable. If it’s January and I’m dressed in appropriate upper Midwest January attire, I show up to the workplace, but it’s really hot on the shop floor at this place, so maybe I go into the locker room or bathroom and I change down to a T-shirt. That’s not a work requirement, it’s just I, it’s my own personal preference for that place. Therefore that would probably not be compensable. Am I thinking about that? Right?

SHENKER:

Yeah, that was a great illustration. Yep. So yeah, you were really getting about into what’s required for the job versus what isn’t, and that’s right. You illustrated the integral part of that. Exactly. Okay. That’s one thing, and I think another issue you mentioned and got me thinking about was performing work before the commute. So this is something that comes up a lot sometimes with sales employees or many times with employees who are going to customer locations each day. So they don’t necessarily report to a company office and they’re making a commute, let’s say, to the customer from home. And so sometimes those employees have to perform some work. They might have to print out a sales report before they leave for the day. They might have to do some other administrative task, whether it’s sending certain emails or linking, syncing up some computers. So there might be work they have to do before they head to work or head to the customer.

And the question is then is that compensable time? And so potentially when an employee does work before their commute, their workday has already started. So that’s telling us that then this commute to work at the beginning of the day isn’t what the typical beginning of the day commute is because this employee’s job as Workday has already begun at home. But what we really look to in this scenario of this work from home is whether it was an integral and indispensable function that could not have been disposed of and really had to have been performed at that time. So let’s take for example, an employee before they head out for the day, they need to, they’re required to check their email, sync their laptop, print out that sales report, and then they can go to their first work site. Now the question is whether they have to do that all right away.

And so look, presented with this scenario, the DOL and courts similarly found that this individual was not required to do that work right before leaving. They found that the employee often printed out their sales report, checked their email, and then drove his kids to school or went to the gym so that it wasn’t something that had to be done right away. Now, on the other hand, so that would mean then that drive to work is not compensable even though there was some work done. But compare that with a situation where an employer requires an employee to perform certain substantive part of their job right before they leave each morning, there’s a set time you have to perform this. It’s not at your own leisure that then could create a compensable travel time to work. So what does that tell us? We need to be careful if we have employees even just doing the home to work commute and nothing else, are we making them do work before they travel to the office? If they’re forced to, however much time it is, it’s about the substantive nature of it, whether it’s integral to their job, if they have to do it right before they leave or right when they get home. Think of the salesperson who after they get home every evening, they’re required to go in and spend 20 minutes uploading all their data for the day and finish any reports and send those all in. That has to be done as soon as you get home. Right now, the travel time home is compensable potentially for that employee.

VANNOY:

I want to break that down a little bit further, and I think I know the answer to this. So if I was a sales rep, I’m assuming we’re talking non-exempt here. If it’s an exempt employee, your salary, this is a non-issue. I do want to go down an exempt path as for more corporate travel, the way to conferences, things like that and how that would relate back to PTO and such. But so we’re talking hourly employees, non-exempt staff. So I’m a sales rep. I log in the morning and my boss doesn’t require it, but I’m a super organized person. I want to be a high achiever. I want to get in, I wake up in the morning and before the kids are awake, I’ll organize my day. And then like you say, I’ll take the kids to school. I’ll have one or two or three hours before I’m actually at work. Then if I chose to do it and it’s not a requirement of my employer, the time that I stop doing that work and then show up to work that’s not compensable, what about the actual time that I’m doing the work, if I take a half hour every morning to organize my day, is that convincible?

SHENKER:

Yeah, great question. Great question. And I think it’s a very important one because I think you point something out that right, employers might be getting the impression that nothing’s compensable when we’re talking about travel time. That’s not compensable here, but right, that work that might be performed at home at the beginning of the day, that’s work that’s compensable, right? Any work performed for the employer is compensable. So right, that is compensable work time. And the next question we’re trying to figure out is whether the employer required it this indispensable work to be done right before you left or right when you get home, that it’s not within your discretion to do it at a more convenient time after you get home and you ate, eat dinner sitting around. So these are those situations where it’s most likely compensable where you have an employer who is really dictating when an employee does certain work.

And that’s why I brought up reporting for salespeople. It is something along those lines where it’s a requirement that as soon as you get home or right before you leave every day you have to do this or someone who does sales and hey, you have to develop your sales route each morning, email us exactly what time and route you’re going to take. That could potentially make it compensable work time. But compare that with the employee gets home, they have to upload their data for the day into the company’s computer system. But the policy says that you can do that anytime between 7:00 PM and 7:00 AM So now you have a 12 hour window, you don’t need to do it right when you get home. So it’s not going to create a compensable travel time issue. But again, of course the time spent doing that work is compensable regardless.

VANNOY:

And this is where employee handbooks become so critical. So let’s step outside of the sales example because there’s obvious flexibility in that job. Maybe it’s a home healthcare provider. So I have employees that go from home to home to home providing the healthcare services, and presumably there’s some call it paperwork, it’s electronic, certainly in most cases some paperwork to fill out some type of a call report where you have to, okay, I just walked through the door, this is what I did. This is the condition of the patient. Here’s what I needed next time, whatever that looks like. If I don’t have a policy as stated in my handbook or otherwise, that says when you could do this, if the employee drives leaves, the last client leaves the last home, drives home and then fills out the call sheets or whatever you would call ’em. In that case at home, that drive time is probably compensable unless you’ve specified a policy otherwise, if you don’t want to pay for that, you need to say, Hey, it’s flexible. It’s up to you when you do it. Or the expectation is when you walk out the door, walk out the door of a home visit, you’re sitting in the car and you’re typing it in at that time. Am I thinking about that correctly?

SHENKER:

Right. Absolutely. I think you make a great point there that once they do that at home and there’s no guidance from the company as to when it needs to be done, it certainly leaves open an argument by the employee that, yeah, look, we had to get these done right away, even though there might not have been anything that said that it was practice and I was expected to do that. Compare that with a company who puts in their handbook, here’s the window of time when you can do this. You want to put something explicit out there in terms of when they should do that, because otherwise, right, you open the door that they can claim no, it was a company practice that it had to be done right away. Yeah.

VANNOY:

Okay. Any other use cases or maybe not use case, any other exception rules that we should be thinking about about driving to and from work?

SHENKER:

So another one that comes up from time to time are employees who use a company vehicle. And oftentimes companies allow those employees to take those vehicles home. And I bring this up because this doesn’t necessarily impact the travel time driving from home to work in your own vehicle versus the company vehicle. It doesn’t really change the compensability outlook, but it does create some complexities with respect to travel and other wage and hour issues. So first, and we haven’t really got into this yet at all, but if an employee is going to incur expenses because they are using the company vehicle, those should be covered by the employer. The employee should not be incurring any costs because of their use of the company vehicle. And as long as the vehicle does not otherwise change their commute, it’s still a non-compensable event if it’s travel at the beginning of the day.

But that said, whenever you have an employee using a company vehicle, especially if they’re taking it home and they have it there overnight or on the weekends, you should have a written agreement considering it covering anything, whether it’s what the employee can do in non-work hours with the vehicle to where it should be stored. Anything else covering how they should be treating the company’s truck or car. And then just a tip, a best practice, and this is kind of a good one, whether or not your employee takes the car home or not, but whenever you have a company vehicle considering whether to have some type of GPS tracking gas cards, EPASS records type of things there, you then have some security. And especially with a vehicle GPS records can be another form of time records. So I know they’re a little more complicated to analyze sometimes than very simple time records. I’ve actually had situations where we had an employee using a company vehicle, we had no time records whatsoever. We had an unpaid wage claim, and the GPS records ended up being essentially the company’s time records. So always something to explore whether you want to use that when you have an employee using the company vehicle.

VANNOY:

Yeah, I suspect prices have gone down dramatically. I don’t pretend to be AGPS logistics software expert, but what used to probably be pretty darn expensive fleet tracking systems, I bet there’s some really inexpensive stuff out there that if you send your employees out to job sites using company, paid for vehicles, really, really easy to use that as a backup though, I would say be careful what you wish for because you’re going to have to follow the law. If you’re not paying people for that travel time, that could blow up on your face, which would be just fine because you got to follow the law. But I think that’s good advice. Any other cases on the to and from work before we maybe jump into travel during the workday?

SHENKER:

Yep. Yeah, I think we can move forward to that.

VANNOY:

Alright, so I just wanted to recap. So the punchline is if I’m driving to and from work generally considered, you don’t have to pay for it. It’s not compensable time. If however, immediately before say leaving for work or immediately upon my return from work, the work that I do is compensable and perhaps my travel time to and from may also be compensable. That’s the general rule of thumb here, right? And so the guidance is, got to have a handbook, got to have a policy. There’s no law that says you must, but to protect yourself and just to set good, clear expectations with employees so that they don’t become disgruntled, you owe them when you don’t, or vice versa just for good communication. Document all this in the form of policy, preferably in a handbook, right?

SHENKER:

Right. Exactly.

VANNOY:

Alright, let’s move to, let’s stay within the non-exempt world. So hourly employees, they’re to work, they’ve shown up to work. Now the time between beginning and end of workday, there’s lots of, I think misinterpretation here. It’s the drive time from one client to the next. There’s wait times. Is there amount of time that maybe I show up to a job and maybe I have a long wait before the next job? Take us through what the exceptions here are. I think what you said at the top was that generally from beginning to the end of the day, that is compensable except when. Now let’s unpack some of those accept wins,

SHENKER:

Right? So it’s more or less the continuous workday rule that once the workday starts, then until you’re completely relieved from all your duties that it’s compensable work time. So that’s the general rule, meaning that if you start at one work site and travel to another one, generally, and again, generally there are exceptions, cities rules, but generally that’s compensable times. So you can think of all different types of workers. You mentioned home care driving from one client to another. There are lots of situations here. So that’s the general rule that the travel we incur during the workday should be paid for. It’s even though it’s not necessarily productive, it’s not doing necessarily the integral work for the company. That doesn’t matter because it’s during the workday, they’ve already begun. So a couple issues, I mean, look, there are various issues that can come up, but some things that I’ve seen, so you have an employee in this situation.

I’ve seen in DOL opinion letters since the pandemic, it’s been occasioned by a lot of people working remotely and from home. So let’s say you have an employee who is going to start the day working at home, but they want to then work the afternoon in the office. You’re not requiring them to come in, but they’re going to work in the morning and then travel to the office in the afternoon to work. So is that necessarily a compensable travel time? Not necessarily. Same with a situation where, let’s say an employee who works from home, then they have to go to a doctor’s appointment, and then from the doctor’s appointment, they’re going to then come into the office and work there. So now we have this travel, it’s in the middle of the day and it’s to go to or from the office. And it’s coming from probably a personal matter.

So here what the DOL tells us is that when employees freely choose at what time they resume working and they can use the time off for their own purposes, that it’s not necessarily compensable travel time. So the employee who starts working at home then goes to the doctor and then drives to work, none of that travel time is likely compensable. Alright, because they’re choosing when it is. Now, it could be a different story if employees thought, Hey, you’re going to work from home in the morning, but then we want you in the office in the afternoon. Well, that’s different right now it’s an employer requirement. But again, this is just to show the difference. And again, as an employer, some of these situations can get complicated. And so really one of the best things an employer can do, and hopefully they see this as we’re going through this, is to identify these issues, identify when there’s some type of travel that raises a flag that you’re wondering, that seems like it’s not the ordinary commuting time from home to work. This may be compensable. Having the ability to spot those issues is the first thing. Again, there are so many different scenarios you can run into here.

VANNOY:

I’m wondering if a good test for an employer would be something like this. So if your employee comes into the office or place of business, whatever, and they have a one hour long doctor appointment at 2:00 PM and the office is 30 minutes from that doctor, they would have to leave by one 30 to get there at two for their one hour appointment, get out at two 30 or get out at two to come back. I think I screwed that up. So they leave at one 30 to get there for two o’clock, they get out at three o’clock, they got a half hour drive back. So from one 30 to three 30, they’re out of work. If it’s not just for the one hour of that meeting. Now in a work from home saying, Hey, my doctor appointment’s at two o’clock in the afternoon, does it really pay for me to come back to the office? Do you care if I work from home for the rest of the afternoon? The employer says yes. It’s not the one hour that they would deduct it is the hour including the travel time, how it would’ve been paid if it was at the office on location. Right?

SHENKER:

Right. And then Mike, as you were speaking, another issue you mentioned earlier that I think is one that comes up from time to time. So oftentimes we have travel time during the day and employee needs to travel from location A to location B to meet a new client and then they show up at location B. The meeting’s set for one o’clock and the client doesn’t show up till two o’clock. So now you have this employee, this hourly employee spent some time traveling and now they showed up for this one o’clock meeting, but the meeting doesn’t start till two o’clock. So they continue to just sit there and wait for that one hour. So the question is that time compensable? And it most likely would be, and this is a situation I seek from time to time that it’s the wait time after traveling to a location that can be a compensable element, right?

It’s separate from the travel, right? You’ve traveled, you were required to be at location B, but now for whatever reason, the work is delayed in getting to you, the client’s not there. You have to wait for something, but that then your travel time has ended. You’re back in your workday at that point. So that’s another issue I see from time to time. Another one being employers who for whatever reason, maybe a misunderstanding of the law, but they only compensate employees for travel time if it exceeds a certain amount of time. So I’ve seen policies where something along the lines of if there’s travel during the workday in between sites, but it’s 30 minutes or less, we’re not compensating you for that. But if your travel time is more than 30 minutes between clients, we will compensate you for those situations.

VANNOY:

Again, that would really dangerous one, because your policy, you can’t, and I learned this from you, you can’t create a policy that circumvents the law. So if you are the one as the employer requiring them to travel, how could you create a policy that isn’t required to pay them?

SHENKER:

Right? No, exactly. And that’s why those are wrong. And yet those often, look, the danger in these is you have employees, especially in that one, you have some getting paid for travel time, some not. It depends on the amount. So that’s when you almost have more red flags being raised employees because they realize, oh, some people are getting paid for travel, some aren’t. Right? It’s almost a worse situation than getting it all wrong.

VANNOY:

So the lesson here is we pound the drum every day about the need for written policies in handbooks, but by God, you better make sure what you’re writing down is legal. That might seem to you a reasonable thing to put on paper. You might actually be just handing the evidence to the judge that you’re doing it wrong.

SHENKER:

Yeah, yeah, exactly. And then look, I think kind of putting it into a separate category of things, but when we talk about travel during the workday, we also get into travel reimbursement issues, which I know is a different issue necessarily than payment for compensable travel time. But we also get into travel reimbursement when individuals, our hourly rate employees are performing compensable travel. If they’re using their vehicle, then

VANNOY:

I don’t know that we’re ever going to do a daily show on that topic. Can you spend maybe five minutes unpack what is required for, is it just the IRS deduction amount for the mileage? What about meals if they’re on the road? Just try to recap that real tight for us.

SHENKER:

Yeah, yeah. Well, let’s go through this pretty quickly and I think it’s fairly straightforward. So under the federal law, right, under the FLLA and employee needs to get their minimum wage, they’re overtime free and clear, right? Meaning that we can’t have cost or deductions eating into their minimum wage. So that’s the issue we have here where an employer will violate the FLSA if the tools of the trade, in this case a car or some travel, means a travel cuts into their minimum wage or overtime wages. So you brought up the IRS mile, the standard mileage. So that is I think what we all think about when we have an employee traveling for work purposes and we need to reimburse them, we all think about, right, send us how many miles you drove, we’ll reimburse you at, I think it’s now 65 and a half cents per mile. But the IRS mileage rate, that’s certainly something that employers can use, but it’s not the only option. What really what employers are tasked with doing is reimbursing the employee for a reasonable approximation of the expenses they incurred for the employer’s benefit. So the company doesn’t need to reimburse the actual travel costs. So you don’t need to figure out the depreciation of the vehicle, the cost of fuel, we have an approximation the IRS mileage rate. Now the employer should keep records of the dates, the amounts, and the nature of the items deducted, right? So, excuse me, we still need to make sure we have data from the employees as CEO where they traveled, how many miles the date. That way you have those records to establish the methodology for the reimbursement.

VANNOY:

Alright, so Brian, to recap, we talked about do you have to pay two and from work, now we’re talking about do you have to pay while at work traveling from place to place? And it sounds like while there’s lots of edge cases, it really comes down to you, are you as the employer requiring that travel versus are they choosing it? So if they’re choosing to say, Hey, I want to work from home this afternoon, is that okay? You say yes, you don’t own for that travel time, but if you require them, Hey, I need you to go here, I need you to go there, then it’s an employee mentor requirement and therefore it’s compensable. Is that fair?

SHENKER:

Yep. General prospect. Yeah,

VANNOY:

I have, I want to come back. I have one more question on the to and from work, and I’m wondering if regularity matters because I think about my neighbor, he works for a company that installs and maintains big overhead doors for shops. So I think about the big garage doors he never knows until night before morning of where he’s going to go work. Now he might go to a job site that’s five minutes away. It might be an hour, hour and a half drive on the other side of the city in the other side of the metro area or middle of the state could be two hour drive to go to a job site. In a case like that, it would seem reasonable that you’re not paying for the five minute drive, but it would also seem unreasonable if you’re to not get paid for the two hour drive. I would imagine you got to pick one or the other. How would you devise a policy in that situation?

SHENKER:

Right. So no, great question. And when you have employees that don’t report to a specific work site, what we do is we look at the general facility. So look, if we’re in a metro area and someone is generally called to work in that metro area, then wherever they drive for that first work site each morning, that’s not compensable, right? Some days it might be 15 minutes, another it might be 45 another it might be 30. Now we get into a slightly different situation where you have a normal commute of let’s say average of 30 minutes and then we have a job one week where it’s a two hour drive each way. In that scenario, what would typically be done is you’d compensate that employee for the amount of the commute that’s beyond what their normal commute is. So if their normal commute is a 30 minute commute and you’re sending them out of town at a job that’s taking two or three hours, then you’re going to pay them the difference between this a two or three hours. So that shift first, the 30 minutes they normally would have. Those are kind of for one-off situations working out of town.

VANNOY:

So I’ve got a couple more examples that I want to explore along those lines. So let’s say I’m a construction worker, say I’m doing road construction and very common there that these guys might be on a project that’s two hours away this direction for a week. They’re staying in a hotel, maybe they got to leave on Sunday afternoon, Sunday evening to get there. So they’re on the job site 6:00 AM Monday morning. Is any of that to and from compensable?

SHENKER:

Yes. So when there’s going to be, I guess we could call it overnight or other travel that’s outside the normal workday, right? An employee who travels away for a project like this that’s overnight or out of their area, they should be paid their regular work hours on the regular days, excluding the meal periods. So that’s how you’re really going to compensate them if it’s falls during the normal normal hours than it’s being compensated. So that’s really how that would be handled. Many employers in these situations just compensate them for the entire travel time, especially in the situation where they’re going to travel two hours on let’s say Sunday and then another two hours or three hours back on Friday. It’s often just paid by the employer. And I want to know something, a separate issue, but something that I think’s important to mention to employers, because some companies, and I’ve dealt with this many times, once they start realizing the compensable nature of say, during the day travel time, they realize that they have a labor issue and a big economic cost. And so I just want to make sure that employers out there should understand that travel time can be compensated at a different rate than the rest of their work time. So you might have employees earning 20 or $30 an hour for their regular work. That doesn’t mean you have to pay them that rate for the travel oftentimes.

VANNOY:

That’s interesting. I never thought about that. So I could have a highly skilled technician trained on a certain piece of equipment, I got to put ’em on an airplane, fly across the country as kind a one-off. It’s not part of their daily job and maybe they’re $50 an hour, 40, 50 bucks an hour. It could be a non-exempt employee to still be paid hourly, but maybe I only pay theoretically minimum wage. Maybe I could pay 10 or 15, $20 an hour, something different for that travel time. That’s what I’m understanding.

SHENKER:

Yeah, definitely. I really recommend a lower hourly rate for the travel time and best practice, even if your jurisdiction doesn’t require it, put that in writing. We probably have an offer letter, something in writing with their regular hourly rate. If you have a separate hourly rate for travel, it might go in the handbook, but it might also go directly to the employees who travel. So they’re aware in advance of this different hourly rate.

VANNOY:

And I’m getting a little nitpicky here, but I live on airplanes and I see guys who are clearly technicians they got, whether it’s the outfit or the toolbox or whatever they’re wearing, these guys are clearly traveling to job sites. I don’t know if they’re hourly or not, but what about that? There’s different types of travel. I could be sitting on a train or an airplane, I could be sleeping or maybe I’m driving, so I am obviously engaged. Where did the lines start and stop for paying for travel if I’m asleep on an airplane?

SHENKER:

I almost want to go to the opposite of that. I think you bring up two points in this scenario that we haven’t touched on, which are very interesting. So we’ve been talking about the compensability of travel time and some might not be compensable, but let’s remember that no matter what travel someone’s doing, if they are performing any work during that travel time, then it becomes compensable. So I think of that because the opposite of your character who’s sleeping right on that flight, if anyone’s doing work, then they should be compensated for the work. So you take the morning commute, I mean, look, I do this all the time though, I’m exempt. But look, a non-exempt employee gets on a call with their manager on their way to work talking about the day or any other issue right? Now, all of a sudden they are performing work on their drive in. So again, what we’re really looking out for are other things that might happen on a day-to-day basis, something that the company requires the employee does, and it just happens to be done during this commute. So I think another thing that’s important when we’re putting these policies together is making sure that there’s a procedure for employees to report if they’re performing work, compensable work during travel time. That should be, there should be a mechanism for them to report that type of thing.

Another thing that your scenario made me think about was exempt employees. And I know we said we’re not really talking about exempt employees today. We’re talking about your hourly employees because your exempt employees get a salary, you’re not compensating them for their travel time. But what does that tell us? That if you have a lot of non-exempt employees performing travel, which could potentially be compensable, you might consider if there are ways that you can set up your business where you have more exempt, salaried employees doing the traveling, right? Because you don’t hit these issues, you might have some reimbursement type issues, but certainly the compensable nature of the travel, that question goes out the window when you restrict travel to exempt employees. So again, that’s one way you could avoid a lot of these issues if most of your travel can be done by exempt workers.

VANNOY:

Brian, maybe the last thing I’ll ask, and it is for the exempt. I’m thinking like trade shows, conferences, if you’re a salaried employee, you got your normal Monday through Friday, nine to five kind of a situation, and you got to go to this conference, but this conference happens to be over a weekend, so you’re going to be working Saturday and or Sunday. Is there anything the employer should be aware about? Do they have to offset that with PTO days? Because hey, this person had to work a seven day week, they were in the office Monday through Friday, they flew out Friday afternoon to go to this conference, they had to work Saturday, Sunday. They’re expected to be back in the office on Monday. Is there any consideration employers need to be thinking about from a compliance perspective?

SHENKER:

So for exempt employees, I think is what you were asking about Mike, right?

VANNOY:

For exempt, correct.

SHENKER:

Right. So the great thing about exempt employees is you get them for as many or as few hours as you need. You’re paying them a salary, not for the amount of time, but for the quality of the work, let’s say. Right? So yeah, there’s no need to, I mean, look, those are always employee relations type issues, right? Giving someone some PTO or a day off after they’ve worked a long week, no legal requirement, you could do that. There certainly could be state requirements for working seven consecutive days if that were the issue, but absent any of those, just because you’ve had an exempt employee of travel and work extra days, other than dealing with possibly reimbursements for travel costs in terms of compensability, you really don’t have much to be concerned with there.

VANNOY:

Yeah. Okay. Alright. So I’d like it if you could maybe just one minute or less recap this thing. We talked about all kinds of use cases, things you should do and shouldn’t do. If you just had to put a bow on this thing, how should employers think about travel pay for driving to and from work and within the workday?

SHENKER:

Yeah, so yeah, I think that acknowledging that travel pay is a complicated issue is number one. And I think, look, as employers, we all have employees traveling to and from work if nothing else. And so you should understand that’s typically not compensable. But now you understand that if you are requiring employees to do things right before they come to work or right when they get home, that could change it. So understanding that, but look, in general, I think what employers should understand is that you could be missing out on compensable work time through travel time, which can be problematic, right? Can lead to lawsuits or DOL audits and that as an employer, your first response should be identifying any travel time that your employees are doing. From there, you need to figure out if it is compensable, which as you’ve heard us talk through this today, it’s not always clear cut. There are a lot of gray areas, and so it’s probably advisable that if you have workers traveling, you’re not quite sure how it should be treated, especially if you have more than one person in those classifications. We’re talking multiple people, potential classes. You want to make sure, talk to an HR consultant, talk to an attorney, make sure you understand what is compensable, and make sure that you don’t have an off the clock issue that can lead to unpaid wages, liquidated damages when spending time on some prevention right now would be a great help.

VANNOY:

I lied. I do have one more question. When do you usually see these things raise their ugly head? This isn’t the kind of thing that would be the result of some random audit. I’m assuming this is his disgruntled employee either reports you or goes and talks to an attorney and then you end up getting sued. Is that fair to say?

SHENKER:

Yeah, that’s usually how it is because I think what you see with travel time is that if employees think they’re not being paid for this travel time, it’s usually something that’s happening on a day-to-day basis. It’s not a one-off situation. So that’s why we often see them coming forward, filing a lawsuit, going to the DOL because it’s an issue that’s hitting them over and over again. And if they think they should be compensated for it, they’re coming forward. And so yeah, I usually don’t necessarily see it with employers coming with questions because like you started out today, I think it’s a commonly overlooked part of the FLA that employers just say, oh, travel time, we don’t pay for it. Right? It’s a very simple thought, but it’s a lot more nuance to it as we saw

VANNOY:

Today. And the reason I bring that up is we just can’t emphasize enough the importance of handbooks and policies in putting your policies in handbooks. So if you’re an employer, you think this is not a big issue. It’s not an issue until it is. And so even if this is not a common thing that you face every single day, get the policy written down so it’s thoughtful and compliant with the law. It’s got to comply with FLSA. You can’t create a policy that circumvents the law, get it in the handbook, communicate that at a time of hiring and once a year review of the handbook that just covers you in the case that something does creep up because all of a sudden that one time you ask an employee to go do something, you think it’s no big deal. They might not think it’s a big deal. Their spouse might have a very different opinion that all of a sudden one trigger event like that that’s outside the normal and somebody has a conversation with an attorney and all of a sudden you’re facing, even if you’ve done nothing wrong, you could be facing the very expensive cost to defend yourself. And unless you have it written down as a policy, that cost of defense goes way up compared to, Hey, no, here’s the policy, here’s your signature, the date that we reviewed this together. This is kind of a dead issue and it goes nowhere.

SHENKER:

Exactly.

VANNOY:

Yeah. All right, Brian, anything else you want to say in closing?

SHENKER:

No, I think that wrapped it up real well, Mike.

VANNOY:

Okay, everyone else, thanks for joining us today. Until next week, we’ll talk to you and Brian. Until next time, thanks.

SHENKER:

Thank you.

Speaker 1:

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