One way companies cheat their workers out of overtime pay is by refusing to pay for travel time.  This issue is commonly seen in overtime lawsuits.  Here are some common issues that arise related to travel time:

• Refusing to pay for same-day travel; 
• Refusing to pay for overnight travel; 
• Paying only a fixed amount of time (i.e. an hour) for travel time, regardless of the actual amount of time traveling; 
• Failing to pay for travel time between the meeting place and job site; 
• Refusing to pay for travel time between the office and the job site; and/or
• Deducting time spent traveling. 

There are many rules and regulations that the Department of Labor has enacted related to travel time.  Unfortunately, most of these rules are arcane and leave much room for debate.  Below are some of the applicable regulations and cases that have interpreted them.  

Same-Day Travel

“The FLSA, as clarified through the Department of Labor regulations, counts time traveling that is `part of [an employee’s] principal activity, such as travel from job site to job site during the workday,’ as hours worked.” Local 589, Amalgamated Transit Union v. Mass. Bay Transp.Auth., 94 F. Supp. 3d 47, 55 (D. Mass. 2015) (quoting 29 C.F.R. § 785.38).

29 C.F.R. § 785.38 provides: Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer’s premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.

“Courts deciding whether to compensate employees for travel time from designated meeting points to a worksite have primarily considered whether employees’ presence at the meeting point was required by the employer and what types of duties employees were required or requested to perform at the meet site.” McCann v. W.C. Pitts Constr. Co., No. 10-CV-52, 2011 U.S. Dist. LEXIS 101107, at *10 (S.D. Miss. Sept. 7, 2011) (collecting cases).

Overnight Travel

29 C.F.R. § 785.39 provides: 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 employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the [Wage and Hour Division] will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

In interpreting § 785.39, a court has found that “travel time is compensable when it cuts across: 1) an employee’s workday and 2) an employee’s regular working hours on nonworking days.” Bassett v. TVA, No. 09-CV-39, 2013 U.S. Dist. LEXIS 83203, at *22 (W.D. Ky. June 13, 2013). On the other hand, “[t]ravel time is not compensable when: 1) it occurs outside of the employee’s regular working hours, whether on working or nonworking days, or 2) the employee is a passenger on a common carrier and his travel occurs during his regular working hours on nonworking days.” See id. at *22-23; see also 1 WAGES & HOURS: LAW AND PRACTICE § 6.03[6] (“[O]vernight trips made during nonworking hours are noncompensable, except to the extent that any employee is required to perform work while engaged in such travel.”).

As stated above, these regulations are not straight-forward.  Do not try to interpret them for yourself.  If you have questions about whether your current or former employer violated overtime laws by failing to pay you for travel time, speak with an experienced wage and hour attorney as soon as possible to learn of your legal rights.  

Josh Borsellino – Travel Time Attorney

Josh Borsellino is an unpaid overtime attorney.  He has represented hundreds of workers across Texas and in other states on overtime pay claims.  He accepts overtime cases on a contingency basis, he only gets paid when and if you do. For a free, no-obligation, confidential assessment of your overtime pay matter, call Josh at 817.908.9861 or email him here.