Recently, the United States Department of Labor issued an Opinion Letter stating:
- First, as a general matter, time is compensable if it constitutes “work” (a term not defined by the Fair Labor Standards Act [FLSA]).
- Second, “compensable worktime generally does not include time spent commuting to or from work.”
- Third, travel away from the employee’s home community is worktime if it cuts across the employee’s regular workday.
- Fourth, “time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile” is not worktime.
This letter, referred to as Opinion Letter FLSA2018-18, was significant because it was the first of its kind since the Bush administration, having been abandoned under the Obama administration in 2010. Current Secretary of Labor Alexander Acosta brought this practice back to clarify the law and improve compliance amongst employers under the Fair Labor Standards Act (FLSA).
The Department of Labor provided two methods to determine normal work hours for employees with irregular schedules in order to determine compensability of travel time:
- If a review of an employee’s hours during the most recent month of regular employment reveals typical work hours, the employer can consider those the normal hours going forward; or
- If an employee’s records do not show typical work hours, the employer can select the average start and end times for the employee’s work days.
Alternatively, where “employees truly have no normal work hours, the employer and employee … may negotiate … a reasonable amount of time or timeframe in which travel outside the employees’ home communities is compensable.”
In other words, the letter released has a few guidelines for employers to follow. For one, commuting to and from work does not constitute compensable travel time (meaning travel time you are paid for) but is an expected time period employees adhere to in order to travel from their home to work. Employees should expect to pay their own expenses regarding commuting to and from work (e.g. paying for fuel for their vehicles or vehicle maintenance).
Additionally, an employer may review employee travel time as it relates to the work they are responsible for doing to determine if they should receive compensation or if the travel time falls within their normal work hours. If it does not, they and the employee may make arrangements for compensation for such travel.
An example an employer and employee might negotiate as part of the terms of work could be related to driving on a weekly basis to check in with a client if it falls within their normal working hours. The factors that would fall into the decision about completing this work and receiving compensation for travel might depend on the vehicle driven, how far the employee must travel, etc.
Colorado Work Travel Laws
Under Colorado law, “employers must pay employees for travel time if it at the control or direction of the employer.” In other words, if an employer sends you on a business trip out of town for a few days, they are required to pay you for the time you worked because that time is within their control and at their direction in order for you to attend specific work-related meetings such as a conference, a meeting with a client, or to complete work on their behalf.