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Trump DOL Issues Opinion Letters on Compensability of Travel Time and Break Time Needed for Medical Reasons
Apr. 13 2018

Trump DOL Issues Opinion Letters on Compensability of Travel Time and Break Time Needed for Medical Reasons

Topics: Wage & Hour Issues

Yesterday, the Department of Labor (DOL) under the Trump administration issued its first wage-hour opinion letters.  Two of these opinion letters may be of general interest to employers and concern issues of (1) when an employee’s travel time must be compensated as hours worked under the Fair Labor Standards Act (FLSA), and (2) when break time taken by employees for medical reasons (protected by the FMLA) must be compensated under the FLSA.

Travel Time

In the first opinion letter, the DOL provided guidance on the compensability of a non-exempt employee’s travel time based on commonly applicable fact patterns.

The DOL began by explaining long-established FLSA law holding that an employee need not be compensated for his or her normal commute time from home to work, regardless of whether the employee works at a fixed job site or at different locations.  However, travel time from an initial job site to other job locations within the work day must be compensated.  Additionally, where an employee reports to a customer location from home, the commute time from home to the customer location is non-compensable (as ordinary commute time) unless the distance is “extraordinary.”  The DOL did not provide any bright-line guidance for what would be considered “extraordinary,” but based on past guidance, a good rule of thumb is that if the commute to the customer location is greater than the employee’s normal commute to work, then the greater commute time should be compensated.

The DOL also addressed the situation where an employee reports to a worksite to pick up materials/assignments and then travels from there to a customer site or other job location.  The DOL indicated that the commute time from the employee’s home to the worksite to pick up materials/assignments is not compensable, but the travel time thereafter to other locations is compensable.  The DOL also clarified that these compensability rules for travel time apply equally regardless of whether or not the employee is driving a company vehicle or a personal vehicle.

Finally, the DOL addressed the compensability of travel time when an employee travels out of town overnight for work.  More specifically, the DOL addressed a hypothetical fact scenario where an employee takes a flight on Sunday for a training that begins on Monday at 8:00 a.m. and continues through Friday, with the employee returning home on Friday after the training concludes (or possibly Saturday if earlier flights are not available Friday night).  The DOL stated that travel time that “cuts across the employee’s workday” must be compensated as hours worked.  In other words, “all time spent in such travel during the hours which correspond to [the employee’s] normal hours of work, including those hours on Saturday and Sunday which correspond to [the employee’s] normal working hours on other days of the week” must be compensated.  “f 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.”  However, time spent in travel outside of these regular work hours as a passenger on a plane, boat, train, bus, or automobile is not considered hours worked. 

The DOL provided more guidance on the meaning of an employee’s “normal hours of work,” where the employee does not have a fixed schedule of hours.  In this regard, the DOL explained:

“There are different methods that an employer may use to reasonably ascertain an employee’s normal work hours for purposes of determining compensable travel time under 29 C.F.R. § 785.39. One permissible method is to review the employee’s time records during the most recent month of regular employment. If the records reveal typical work hours, the employer may consider those as the normal hours going forward unless some subsequent material change in circumstances indicates the normal hours have changed. If the records do not reveal any normal working hours, the employer may instead choose the average start and end times for the employee’s workdays. As another alternative, in the rare case in which employees truly have no normal work hours, the employer and employee (or the employee’s representatives) may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable. See WHD Opinion Letter (March 17, 1964) (approving an employer’s use of an employee’s average daily number of hours worked as the number of compensable hours on a travel day, “provided [the employer] and [the] employees agree on this method of determining the normal workday”). This is not an exhaustive list of the permissible methods for determining an employee’s normal start times or end times under 29 C.F.R. § 785.39. But when an employer reasonably uses any of these methods to determine employees’ normal working hours for purposes of determining compensable travel time under 29 C.F.R. § 785.39, WHD will not find a violation for compensating employees’ travel only during those working hours.”

The DOL also emphasized that if an employee performs actual work while traveling (e.g. working while on a plane), even where outside of normal working hours, all time spent performing work must be compensated.  Finally, the DOL addressed a hypothetical scenario where an employee opts to drive their car to an out-of-town location in lieu of taking an airplane or other public transportation.  The DOL instructed that if an employee is offered public transportation but opts to drive a personal vehicle instead, the employer may count as hours worked either the time the employee spent driving or the time during normal working hours that the employee would have traveling via public transportation. 

Finally, the DOL addressed whether an employee must be compensated for the time spent traveling from a work site to a hotel at the end of the day.  The DOL stated that when an employee is temporarily working at a remote location, the time spent traveling to/from the temporary location and the hotel is considered normal home-to-work commute time and is not compensable.

Breaks Taken for Medical Reasons

In the second opinion letter, the DOL addressed the compensability of a 15-minute rest break taken every hour by an employee for a serious health condition under the FMLA.  The DOL opined that such breaks primarily benefit the employee, not the employer, and need not be compensated as hours worked.  [The FMLA also does not mandate that any leave time be paid.]  However, the DOL clarified that where the employer has a policy of providing paid rest breaks to its employees (typically a 15-minute rest break for every four hours of work), the employee taking short breaks under the FMLA would have to be compensated for such breaks to the same extent other employees get paid for rest break time.  [Under the FLSA, short rest breaks of up to 20 minutes offered to employees must be compensated as hours worked because such breaks primarily benefit the employer by re-energizing employees.]  Thus, if an employee working an 8-hour day takes a 15-minute break every hour for a serious health condition under the FMLA, the employee really is only working 6 hours and need only be paid for 6 hours.  However, if the employer provides two paid 15-minute rest breaks per day to other full-time employees, the employee taking the FMLA breaks would have to be paid for two of those 15-minute breaks.

The DOL’s opinion letters on these subjects are here and here.

Multi-State Employers With California Employees:  Beware of Different California Laws

Under California law, an employee must be compensated for all time during which he/she is subject to the “control” of the employer, regardless of whether or not the employee is actually being “suffered or permitted to work.”  Based on this standard, California law (in contrast to the FLSA) does not recognize a distinction for compensability purposes between out-of-town travel that takes place during “normal working hours” and travel that takes place outside of normal working hours. If an employee has to undertake out-of-town travel, all travel time spent on public transportation or in a car is compensable as hours worked (except that where the employee travels to the airport/train station and the airport/train station is the same or substantially similar distance as the employee’s normal commute to the workplace, the time getting to the airport/train station is not compensable).  The employee must be paid for all time from when he/she arrives at the airport until he/she reaches the hotel destination.  After that, the employee need not be paid for time spent staying at a hotel (except to the extent actual work is being performed, of course).  Additionally, if an employee takes a break from “traveling” to engage in personal pursuits (e.g. sightseeing after arriving in city but before going to hotel), that personal time need not be compensated. 

California law is similar to that of the FLSA (and DOL guidance) on the issue of compensability of travel time during a normal work day.  In other words, normal commute time from an employee’s home to/from the worksite is not compensable.  This is subject to the caveat that if an employee is required to drive a company vehicle under strict conditions that prevent the employee from engaging in any personal pursuits during their commute (e.g. restrictions that disallow passengers and similar restrictions), the time the employee is required to drive the vehicle will be deemed time that is subject to the control of the employer and, therefore, compensable.  Finally, as is the case under the FLSA, all time spent traveling during the course of the workday (after reporting to the first worksite) is compensable, and if an employee is required to report to a different worksite than usual, the commute time to that workplace is compensable to the extent it exceeds the employee’s normal commute.

Employers are reminded, however, that even in California, they may establish a different rate of pay for travel time than usual work time, as long as the travel rate is at least minimum wage and communicated to the employee before the travel begins.

As for the issue of compensability of hypothetical rest break time taken for medical reasons under the FMLA, in California, the employee would need to be compensated for the time if still deemed to be subject to the control of the employer during that time.  If an employee is required to remain on the employer’s premises or is otherwise not completely relieved of duty, the time likely would be considered compensable as hours worked.     

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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