Atlanta Employment Attorneys Blog
Millions of Americans commute to and from work every day. For many others, getting to work is more complex, involving extended travel and multi-day (or weeks-long) stays away from home. While the Fair Labor Standards Act does not include daily commuting to and from home among the hours for which employers must compensate employees, the rules are different when overnight stays are involved. These employment arrangements may create situations where travel time must be compensated. If you have questions about travel time and the FLSA, talk to a knowledgeable Atlanta wage-and-hour lawyer to get the accurate answers you need.
Recently, a federal appeals court in the Midwestern United States delved into this issue of travel time and the FLSA.
The employer in the lawsuit was an Indiana-based equipment installation company. Working for the company involved driving to client sites far from home. Employees would remain at their sites from a few days to several weeks. Other than per diems and mileage reimbursements, the employer did not compensate its employees for their travel time.
J.W., a tradesman who worked for the company in 2021, often traveled to and from remote job sites “during what… clients would later designate as his normal working hours.” Because the employer did not compensate him for his travel time, he sued under the FLSA. The employer argued that the hours were non-compensable because workers “were engaged in normal, non-compensable commuting when they traveled to remote client sites.”
The trial and appellate courts agreed with the employee. According to the 7th Circuit Court of Appeals (which covers federal cases in Illinois, Indiana, and Wisconsin,) the crucial distinction comes down to where the employee sleeps. If they come home, travel can qualify as ordinary commuting. If they do not, it cannot.
The Importance of Overnight Travel
The court looked closely at two federal regulations. One of the key regulations, 29 CFR Section 785.39, says, “Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee’s workday.” The second regulation, Section 785.35, delineates “ordinary commuting,” which is not compensable, as an event where the “employee… travels from home before his regular workday and returns to his home at the end of the workday.” According to the court, these regulations revealed that the overnight-versus-no-overnight difference was critical to determining compensability.
However, traveling away from home for at least one overnight is just one element of the compensability question. For travel time to be compensable under the FLSA, it also must “cut across the employee’s workday,” meaning that it must occur during “normal working hours.” The appeals court also clarified that “travel on nonworking days is compensable so long as it occurs during what would otherwise be considered the employee’s normal working hours.”
In the tradesman’s case, he (and other coworkers) regularly traveled to client sites during regular working hours and subsequently remained at those sites for at least one overnight. As a result, that travel time was compensable.
The court rejected the employer’s argument based on the Portal-to-Portal Act, explaining that the Act applies only to daily trips to and from a worksite and does not cover “out-of-town, overnight travel scenarios.”
In 2017, a different federal appeals court reached the opposite conclusion. The 6th Circuit (which covers Michigan, Ohio, Kentucky, and Tennessee) said that the Portal-to-Portal Act did apply. Specifically, that court said employees’ “travel could not have cut across their workdays because their workdays did not begin until they arrived at the client site to perform the activities they were hired to perform.”
The tradesman’s case is a reminder that the FLSA’s rules regarding the compensability of travel time are complex, and employers should tread carefully when making pay decisions. For knowledgeable answers to your travel time questions, the experienced Atlanta wage and hour attorneys at the law firm of Parks, Chesin & Walbert can help. Our team provides clients with detailed advice and solutions custom-tailored to their specific challenges. Contact us through this website or at 404-873-8048 to schedule a consultation today.