In 1938, Congress passed the Fair Labor Standards Act (FLSA) to provide overtime compensation for non-exempt employees who worked more than 40 hours in a work week. After the FLSA was passed, courts began to find that time spent traveling to and from the actual place of work (i.e. commute time) or preliminary activities to get ready to perform the work counted as “work time.” Congress then amended the FLSA by passing the Portal to Portal Act. The Portal to Portal Act states that time spent traveling to the site of work is not compensable and that “preliminary” and “postliminary” activities are also not compensable.
But, what if the employee is driving a car provided by the employer? This is often an issue when an employee is assigned a company vehicle and spends his or her day traveling to various job sites, i.e. a cable technician who travels throughout the day to install or repair cable services at customers’ homes in an assigned territory. When driving a company vehicle, should such an employee be compensated for travel time from his or her home to the first appointment or when traveling from the last appointment to home? Opinion letters, issued by the Department of Labor in 1994 and 1995, pointed in different directions. In response, Congress enacted the Employee Commuting Flexibility Act (“ECFA”) which provides that use of a company-provided vehicle is not compensable time if the vehicle is used for travel “within the normal commuting area for the employer’s business or establishment” and “the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.”
The ECFA does not define what constitutes a “normal commute time” for the employer’s business. A letter ruling from the Department or Labor suggests that a one-hour commute time is presumptively within a normal commute time for an employee. Relying on this letter ruling, some courts have taken the position that as long as commute time is less than one hour, the time need not be compensated. Other courts take the approach that as long as the employee is commuting within his or her assigned territory, it is normal commuting time and not compensable. One court found that an employer was not liable for any “commuting time” under 35 minutes, because the employer had conducted a study of its employees and found that 35 minutes was the average commute time for the relevant employees. Employers should consult with their employment and labor counsel to determine which approach most appropriately fits their business and workforce.
While commuting time is generally not compensable, including when done in a company-provided vehicle, if the employer requires an employee to work while commuting, the time spent commuting will be compensable. Prudent employers should enact policies that state once an employee has clocked out and is on his or her way home in a company-provided vehicle, the employee cannot be contacted regarding work tasks. Similarly, policies should state that contact with the employee regarding work prior to the employee’s shift should be limited. To the extent an employee can claim that he or she was required to work while driving home from his or her last appointment (or before or while driving to his or her first appointment), such employee may have a claim to for compensation.
To contact Sean Monson about this or other employment-related issues, call (801) 536-6693.
