The rock group Chicago once asked in one of its famous hits: “Does anybody really know what time it is,” to which the lead singer ultimately responded, “does anybody really care?” In the labor and employment realm, time is something that employers need to care about, especially when it comes to wage and hour legal compliance. What is time worked? That is important because non-exempt hourly employees must be paid for all such time. But what exactly is it?
Often the foregoing question is easily answered. If you see someone performing actual work or services for a company, that is time worked and the employee must be compensated for that time. But not every question like that is so obviously answered. One of the trickiest of areas when it comes to figuring out compensability is travel time. When must an employee be paid while technically the employee is doing nothing more than traveling from one location to another? Several of my clients have had to deal with this issue in audits with the United States Department of Labor (“USDOL”). The lesson my clients have learned from this experience is that, when it comes to travel time, you must know the rules applicable to such time. However, when you actually study such rules, you will see that they are not the most logically consistent or intuitive of rules in determining when you must pay your non-exempt employees. Thus, when faced with a travel time issue, you must pick out the correct rule and precisely fit your situation into that applicable rule-otherwise you will face a significant legal problem.
The easiest of the travel rules to apply is the coming and going to work rule. Ordinary travel from home to work and back is not considered work time and is thus not included in an employee’s wage calculations. Simple enough. Now, how about if the employee, instead of going directly to the employer’s facilities, travels instead to the actual work location, such as a construction site, where the employee is to perform his/her services? Again, that time is not counted because the employee is coming and going from home to the work site and back home again. But what happens if, before the employee goes to the construction site, he/she needs to stop for a moment at the employer’s facilities to pick up needed tools for the project and then goes to the work site? Not compensable travel time, right? Nope, wrong. Why, because there is a specific rule that requires in such circumstances that the employee’s travel time from the employer’s facility to the actual construction project be counted as work time, all because the employee made that first stop to pick up tools. Clear, right? Logical, right?
Of course not-this compensability requirement does not logically fit the presented circumstances. But that is the rule that the USDOL created and applies in such cases. So, when it comes to travel issues, employers need to know the rules because auditors do. You cannot let your company fall prey to wage and hour violations that can be simply avoided by identifying an issue and finding and applying the right travel time rule that fits your facts.
Therefore, with apologies to Chicago, every employer needs to care about time, especially travel time.
