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Compensability of Travel, Waiting, and On-Call Time

The Law Offices of Kevin J. Dolley regularly handles claims, questions, or concerns regarding the compensability of time spent by employees waiting or traveling as part of their work. Such time is often referred to as travel time, waiting time, or on-call time. The FLSA and its accompanying regulations provide guidance as to how such issues should be interpreted. Our attorneys know these laws and regulations well and can help guide you toward a better understanding of your potential rights and obligations in relation to them.

What are “hours worked”?

A fundamental rule of the FLSA is that “employees must be compensated for all hours worked.” See 29 C.F.R. § 778.223. Under the FLSA, “hours worked” will include:

  1. All time during which an employee is required to be on duty or to be on the employer’s premises or at a prescribed workplace; and
  1. All time during which an employee is suffered or permitted to work whether or not he is required to do so.

Id. “Thus, working time is not limited to the hours spent in active production labor, includes time given by the employee to the employer even though part of the time may be spent in idleness. Some of the hours spent by employees, under certain circumstances, in such activities as waiting for work, remaining ‘on call,’ traveling on the employer’s business or to and from workplaces, and in meal periods and rest periods are regarded as working time and some are not.” Id.

Agreements whereby an employer only provides for payment of hours spent in productive work (and not work hours spent in waiting time, time spent in travel on the employer’s behalf, or similar nonproductive time) do not comply with the FLSA because “such nonproductive working hours must be counted and paid for.” 29 C.F.R. § 778.318.

The “hours worked” rule is equally applicable to work performed away from an employer’s premises or job site(s). See 29 C.F.R. § 785.12. “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” Id. “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.” 29 C.F.R. § 785.13.

“Hours Worked” under the Portal-to-Portal Act

The Portal-to-Portal Act did not change the general rule regarding “hours worked,” other than to provide certain exceptions for “preliminary” and “postliminary” activities. See 29 C.F.R. § 785.7. The Portal-to-Portal Act was passed in 1947 to address “wholly unexpected liabilities” that resulted from a flood of litigation wherein employees claimed, based on the broad definition of “hours worked,” that the time they spent commuting to and from the work site each day was compensable. See Compensability of Work Time; see also 29 C.F.R. § 790.2 (“the Portal Act is explicitly directed to the meeting of the existing emergency and the correction”).

The Portal-to-Portal Act addressed the commuting problem by excluding from “hours worked” certain travel and walking time and other similar “preliminary” and “postliminary” activities performed “prior” or “subsequent” to the “workday” that are not made compensable by contract, custom, or practice. 29 C.F.R. § 785.9. Generally, the “workday” means the period between "‘the time on any particular workday at which such employee commences (his) principal activity or activities’ and ‘the time on any particular workday at which he ceases such principal activity or activities.’ The ‘workday’ may thus be longer than the employee’s scheduled shift, hours, tour of duty, or time on the production line.” Id. Nonetheless, the Portal-to-Portal Act made clear that “preliminary” or “postliminary” activities compensable by contract, custom or practice must be counted for purposes of the FLSA. Id.; see also 29 C.F.R. § 790.10(c) (noting “[t]he phrase, ‘custom or practice’…is rather broad in scope” and is “descriptive generally of those situations where an employer, without being compelled to do so by an express provision of a contract, has paid employees for certain activities performed”).

When is “travel time” compensable?

To determine whether travel time is compensable, one must consider the kind of travel involved. See 29 C.F.R. § 785.33. The Portal-to-Portal Act excluded from “hours worked” time spent commuting to and from the employer’s worksite—that is, “ordinary travel from home to work.” See 29 C.F.R. §§ 785.34, 785.35, 790.7(c) (distinguishing ordinary commuting from other types of work travel). For example, “the use of an employer’s vehicle for travel by an employee and activities that are incidental to the use of such vehicle for commuting are not considered principal activities when the use of such vehicle is within the normal commuting area for the employer’s business or establishment and is subject to an agreement on the part of the employer and the employee.” 29 C.F.R. § 785.34.

However, “travel by a repairman from one place of where he performs repair work to another such place…is not the kind of ‘walking, riding, or traveling’ described” in the Portal-to-Portal Act. 29 C.F.R. § 790.7(c). Similarly, “where an employee travels outside his regular working hours at the direction and on the business of his employer, the travel would not ordinarily be ‘walking, riding, or traveling’ of the type referred to” in the Portal-to-Portal Act. Id. (providing example of “traveling employee whose duties require him to travel from town to town outside his regular working hours”). In these scenarios, “the question of whether the travel time is to be counted as worktime under the [FLSA] will continue to be determined by principles established under [the FLSA], without reference to the Portal Act.” Id.

Outside of the ordinary commuting covered by the Portal-to-Portal Act, FLSA regulations address different scenarios with respect to the compensability of travel time. See 29 C.F.R. §§ 785.35 - 785.41. For example, “[t]ime 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.” 29 C.F.R. § 785.38. In particular, “[w]here 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.” Id.

Similarly, “[t]ravel 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 non-working days.” 29 C.F.R. § 785.39. And “[a]ny work which an employee is required to perform while traveling must, of course, be counted as hours worked.” 29 C.F.R. § 785.41.

When is “waiting time” compensable?

The particular facts and circumstances of a given situation will dictate whether “waiting time” is compensable under the FLSA. 29 C.F.R. § 785.14. This determination “involves ‘scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait or they may show that he waited to be engaged.’” Id. Ultimately, the determination must be made in accordance with common sense and the general concept of work or employment. Id.

FLSA regulations provide some general examples of “on duty” and “off duty” situations with regard to waiting time. 29 C.F.R. §§ 785.15, 785.16. Like the question on the compensability of “on-call” time, the answers to these examples center around, and hinge upon, whether the employee was able to use the time period in question “effectively for his own purposes.” Id.; 29 C.F.R. § 785.17. If not, this time effectively “belongs to and is controlled by the employer” and thus the time is compensable. Id.

When is “on-call time” compensable?

FLSA regulations also comment on the compensability of time spent while “on call.” 29 C.F.R. § 785.17. In particular, “[a]n employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on call.’” Id.; see also 29 C.F.R. § 553.221(c) (“Time spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits also constitutes compensable hours of work”). However, “[a]n employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.” Id.

Contact Us

If you have questions or concerns regarding the compensability of time spent traveling, on-call, or while waiting for work, contact the Law Offices of Kevin J. Dolley by phone at (314) 645-4100 or by email at kevin@dolleylaw.com.

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The Law Offices of Kevin J. Dolley represents clients in labor law, employment law and employment discrimination matters throughout the State of Missouri, including St. Louis, St. Louis County, St. Charles County, Boone County, Jefferson County, Lincoln County, Jackson County, Phelps County, Franklin County, Ste. Genevieve, St. Clair and the Cities of St. Louis, Kansas City, St. Charles, O'Fallon, Lake St. Louis, Hillsboro, Troy, Clayton, Rolla, Columbia, Jefferson City, Kirksville, Farmington, Cuba, Augusta, Union, Maryland Heights, Cape Girardeau and Springfield.
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