flsa for travel time

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Hours of Work for Travel

Fact sheet: hours of work for travel, description.

In limited circumstances, travel time may be considered hours of work. The rules on travel hours of work depend on whether an employee is covered by or exempt from the Fair Labor Standards Act (FLSA). For FLSA-exempt employees, the crediting of travel time as hours of work is governed under title 5 rules-in particular, 5 U.S.C. 5542(b)(2) and 5544(a)(3) and 5 CFR 550.112(g) and (j). For FLSA-covered employees, travel time is credited if it is qualifying hours of work under either the title 5 rules or under OPM's FLSA regulations-in particular, 5 CFR 551.401(h) and 551.422.

Employee Coverage

Title 5 overtime laws and regulations apply to most FLSA-exempt Federal employees, including General Schedule and prevailing rate employees. Certain employees, such as members of the Senior Executive Service, are not eligible for overtime pay or other premium pay under title 5. (See 5 U.S.C. 5541(2) and 5 CFR 550.101 for coverage rules.)

OPM's FLSA regulations apply to most FLSA-covered Federal employees. (See 5 U.S.C. 5542(b)(2) and 5544(a)(3) and 5 CFR 551.102.) An employee may determine his or her FLSA status by checking block 35 of the most recent Notification of Personnel Action (SF-50) to find out whether his or her position is nonexempt (N) or exempt (E) from the overtime pay provisions of the FLSA. Alternatively, an employee may obtain a determination from his or her servicing personnel office.

Overtime Work

In general, overtime hours are hours of work that are ordered or approved (or are "suffered or permitted" for FLSA-covered employees) and are performed by an employee in excess of 8 hours in a day or 40 hours in a workweek. (See 5 U.S.C. 5542(a), 5544(a), and 6121(6) and (7), and 5 CFR 550.111 and 551.501. Note exceptions.)

Travel That is Hours of Work Under Title 5

Under 5 U.S.C. 5542(b)(2) and 5 CFR 550.112(g), official travel away from an employee's official duty station is hours of work if the travel is-

• within the days and hours of the employee's regularly scheduled administrative workweek, including regularly scheduled overtime hours, or
• involves the performance of work while traveling (such as driving a loaded truck);
• is incident to travel that involves the performance of work while traveling (such as driving an empty truck back to the point of origin);
• is carried out under arduous and unusual conditions (e.g., travel on rough terrain or under extremely severe weather conditions); or
• results from an event that could not be scheduled or controlled administratively by any individual or agency in the executive branch of Government (such as training scheduled solely by a private firm or a job-related court appearance required by a court subpoena).

An agency may not adjust an employee's normal regularly scheduled administrative workweek solely to include travel hours that would not otherwise be considered hours of work.

Travel That is Hours of Work Under the FLSA

For FLSA-covered employees, time spent traveling is hours of work if-

• an employee is required to travel during regular working hours (i.e., during the regularly scheduled administrative workweek);
• an employee is required to work during travel (e.g., by being required to drive a Government vehicle as part of a work assignment);
• an employee is required to travel as a passenger on a 1-day assignment away from the official duty station; or
• an employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee's regular working hours. (See 5 CFR 551.422(a).)

Official Duty Station

"Official duty station" is defined in 5 CFR 550.112(j) and 551.422(d). An agency may prescribe a mileage radius of not greater than 50 miles to determine whether an employee's travel is within or outside the limits of the employee's official duty station for determining entitlement to overtime pay for travel.

Administrative Workweek

An administrative workweek is a period of 7 consecutive calendar days designated in advance by the head of an agency under 5 U.S.C. 6101. The regularly scheduled administrative workweek is the period within the administrative workweek during which the employee is scheduled to work in advance of the administrative workweek. (See definitions in 5 CFR 610.102. See also 5 CFR 550.103 and 551.421.)

Commuting Time

For FLSA-covered employees, normal commuting time from home to work and from work to home is not hours of work. (See 5 CFR 551.422(b).) However, commuting time may be hours of work to the extent that the employee is required to perform substantial work under the control and direction of the employing agency-i.e., productive work of a significant nature that is an integral and indispensable part of the employee's principal activities. The fact that an employee is driving a Government vehicle in commuting to and from work is not a basis for determining that commuting time is hours of work. (See Bobo decision cited in the References section.)

Similarly, for FLSA-exempt employees, normal commuting time from home to work and from work to home is not hours of work. (See 5 CFR 550.112(j)(2).) However, commuting time may be hours of work to the extent that the employee is officially ordered or approved to perform substantial work while commuting.

Normal "home-to-work/work-to-home" commuting includes travel between an employee's home and a temporary duty location within the limits of the employee's official duty station. For an employee assigned to a temporary duty station overnight, normal "home-to-work/work-to-home" commuting also includes travel between the employee's temporary place of lodging and a work site within the limits of the temporary duty station.

If an employee (whether FLSA-covered or exempt) is required to travel directly between home and a temporary duty location outside the limits of the employee's official duty station, the time the employee would have spent in normal commuting must be deducted from any hours of work outside the regularly scheduled administrative workweek (or, for FLSA covered employees, outside corresponding hours on a nonwork day) that may be credited for the travel time. (The travel time is credited as hours of work only as allowed under the applicable rules-e.g., for an FLSA-covered employee, if the travel is part of a 1-day assignment away from the official duty station.)

• 5 U.S.C. 5542(b)(2) (General Schedule employees)
• 5 U.S.C. 5544(a)(3) (Prevailing rate employees)
• 5 CFR 550.112(g) and (j), 610.102, and 610.123
• 5 CFR 551.401(h) and 551.422 (OPM's FLSA regulations)
• Decision by United States Court of Appeals for the Federal Circuit, Jerry Bobo v. United States , 136 F.3rd 1465 (Fed. Cir. 1998) affirming Court of Federal Claims decision of same name, 37 Fed. Cl. 690 (Fed. Cl. 1997).
• Section 4 of the Portal-to-Portal Act of 1947 (61 Stat. 84) as amended in 1996 by section 2102 of Public Law 104-188. (See 29 U.S.C. 254.)

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Under the FLSA, when must nonexempt employees be paid for travel time?

The Fair Labor Standards Act (FLSA) regulations require employers to pay for travel time in some circumstances. Generally, time spent traveling is compensable, unless it is normal home-to-work commute time, or when travel requires an overnight stay and the time spent traveling as a passenger falls outside of the employee's normal work hours.

When pay is required, the time spent traveling is considered hours worked and must be included when determining overtime pay obligations. 

Home-to-work travel. Normal commuting time to an employee's regular worksite is not treated as hours worked under the FLSA.

Home to work on a special one-day assignment in another city . When an employee must travel out of town for work but returns home the same day, all the time spent traveling during the day is compensable, regardless of the employee's regular work hours. However, an employer may deduct the time the employee would have spent commuting to his or her regular work location.

Travel that is all in a day's work. Time spent traveling to and from different worksites during the day is work time and must be paid.

Travel away from home. When travel requires an overnight stay, any time traveling as a passenger that falls within the employee's normal work hours is compensable, regardless of what day of the week the travel takes place. Time spent traveling to an airport terminal or train station is considered commute time and is not treated as hours worked, but the time spent waiting at the terminal until arrival at the destination is compensable when it falls during normal work hours.

For example, if Meg normally works Monday through Friday, 8:30 a.m. to 5 p.m., and she is required to travel by plane on a Sunday for business in another state, her travel time on Sunday between 8:30 a.m. and 5 p.m. is compensable.

So, if Meg arrives at the airport on Sunday at 3 p.m. and at her destination at 8 p.m., the employer is required to pay her only from 3 p.m. to 5 p.m., the hours that correspond with her normally scheduled work hours.

Alternatively, if Meg drives herself or others at the direction of the employer rather than traveling as a passenger, all the time spent driving is compensable work time, regardless of Meg's normal work hours.

Driving at the direction of the employer . When employees are required to drive themselves or others, all driving time is compensable. However, when an employee is traveling to an overnight stay and has the option to use public transportation (i.e., airplane, train, bus, etc.) but chooses to drive his or her own vehicle instead, the employer can either choose to pay for all time spent traveling or pay only the travel time that occurs during normal work hours, regardless of what day of the week the employee travels (CFR 785.40). If an employee volunteers to drive others in his or her own vehicle to the overnight stay, an employee's time could be unpaid for those travel hours outside the normal work hours.

Worked performed while traveling. An employee must be paid for any time he or she is performing work. This includes time spent working during travel as a passenger that would otherwise be non-compensable.

For example, Meg normally works Monday through Friday, 8:30 a.m. to 5 p.m. She arrives at the airport on Sunday at 3 p.m. and at her destination at 8 p.m. Generally, the employer is required to pay her only from 3 p.m. to 5 p.m.; however, if Meg works on a presentation during her flight until 6:30 p.m., her employer would need to pay her from 3 p.m. to 6:30 p.m.

Some states have travel-time laws that are more generous than the federal FLSA.  

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What is considered compensable travel time pursuant to the Fair Labor Standards Act (“FLSA”) is not always clear or intuitive to employers, even for those who usually have a good handle on wage and hour laws. This blog post hopefully will simplify the requirements set forth in the U.S. Department of Labor’s (“DOL”) regulations and interpretive guidance to help clarify when employees must be paid for travel time.

Ordinary Home-to-Work Travel

Likely not a surprise for most employers, employees are not entitled to pay for time that they normally spend commuting between their homes and the work place.

And, keep in mind, this rule applies to employees who report to the same or different work sites.

If, however, a particular work site is well beyond the employee’s typical home-to-work commuting time, e.g. the employee lives five miles from his office, but is asked to commute 50 miles to an alternative work site for a discrete assignment, the employer should consider, for both legal and employee relations reasons, paying for such significantly longer commuting time.

Same Out-of-Town Day Travel

DOL regulations provide for a different rule for out-of-town travel – even if all of the travel and work is accomplished in one day. The regulations provide an example where an employee works in Washington, D.C. during the hours of 9:00 AM to 5:00 PM.

Assume the employee is asked to work on an assignment in New York City for one day, for which he must leave his house at 8:00 AM and arrives in New York City at 12:00 PM whereupon he starts to work. He completes the work at 3:00 PM, and arrives back in Washington, D.C. at 7:00 PM. How much, if any, should this employee be paid for traveling to New York?

The DOL takes the position that this travel cannot be considered normal (and non-compensable) home-to-work commuting, even if it is accomplished in one day. Rather, the DOL provides that such travel must be compensated because it is an integral part of the work to be performed. The regulations provide, however, that employers may deduct the time it took the employee to travel from his home to the train station, airport or bus depot, which is treated as the equivalent to normal home-to-work commuting time.

Travel That Is “All in a Day’s Work”

Employers are required to pay for all work-related travel time spent by employees throughout the course of the work day. This rule specifically applies to employees who travel as part of their principal activity from one job site to another.

Remember, however, that employers may still deduct normal home-to-work commuting, such as the time that an employee spends commuting from the last job site of the day to her home.

Overnight Out-of-Town Travel

Probably the most interesting and least intuitive travel time rule is overnight out-of-town travel. In these cases, the DOL requires employers to compensate employees for travel time that occurs during the employee’s normal work day.

For example, returning to our employee who works from 9:00 AM to 5:00 PM, he must be compensated for only his travel time that coincides with his normal work day.

What is more, this rule applies to any day of the week, even days on which the employee does not normally work. For example, an employee who typically works Mondays through Fridays, but travels for business during her normal working hours on a Saturday or Sunday must be paid for such travel time.

In addition, it is important to note that if an employee is offered public transportation, but requests to drive her own car instead, the employer may count as hours worked either the time spent driving the car or the time she would have had to count as hours worked during working hours if she had used public transportation.

Also, employers need not pay employees on out-of-town trips for their regular meal periods.

Lastly, employees must always be paid for any actual work they perform while traveling.

Other Considerations

Please keep in mind that this blog post addresses the legal requirements pertaining to travel time pay; however, employers may always pay for travel that does not necessarily require compensation pursuant to the FLSA and DOL regulations.

Also note that it is important to confirm whether the state or locality within which your traveling employees work does not have different, i.e. more rigorous, travel pay requirements than the FLSA. You should always consult your human resources specialist, internal or external counsel to make sure you are in full compliance with not only federal, but also state and local law requirements.

Lastly, it is always the best practice to provide clear guidelines to your employees in your employee handbook or as a standalone policy so there is no confusion on anyone’s part as to when employees should be compensated for travel time.

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Fair Labor Standard Act (FLSA) & Travel Time

General rules.

A. Excluding normal commuting time, employees should be compensated for all travel unless:

• It is overnight; or
• No work is performed.

B. An employer may rearrange the work schedule within the workweek (Sunday – Saturday) to avoid additional compensation hours that may occur because of travel time or compensable commuting time as described below. Whenever possible, the employer and employee should discuss the possibility of rearranging the work schedule prior to departure.

Commute Time

Generally, an employee is not at work until he or she reaches the work site and begins working. A. If the employee is required to report to a meeting place where he or she is to pick up materials, equipment, or other employees, or to receive instructions before traveling to the work site, time is compensable only once the employee reaches the meeting place. If the employee drives a state vehicle, to and from work, he or she does not have to be compensated for that commuting time as long as:

• Driving the vehicle between home and work is strictly voluntary and not a condition of employment;
• The vehicle is a type normally used for commuting;
• The employee incurs no costs for driving the employer’s vehicle or parking it at home; and
• The work sites are within normal commuting area of the employer’s place of business.

Note: Unless there is a contract, custom or practice providing that an employee’s regular daily travel time between home and the workplace is compensable, such travel time is not compensable. If such a contract, custom or practice exists, the travel time is compensable.

Travel During the Workday

Travel as a part of the employee’s principal activity must be counted as hours worked. If the travel is for the benefit of the employer, it is compensable.

• Example: the employee travels from job site to job site during the workday.

B. If the employee runs an errand (i.e., stops at a business or at home) for his or her own convenience, the time traveling to/from that site that adds additional time is not compensable.

• Example: the employee leaves home for the work site but stops at a shop for his or her own convenience.

C. Time spent by the driver in picking up other passengers and transporting them to a specific location is work time and therefore compensable. The time the picked-up passengers spend traveling in the car is also compensable.

Out of Town Travel - Special One Day Assignment

A. If the employee is assigned to work in another city for one (1) day and the travel is performed for the employer’s benefit and at its request, it is part of the principal activity of the employee and therefore is compensable. This is true even if the employee is traveling by common carrier since this is a special assignment and is not ordinary home to work travel. The assignment is performed for the employer’s benefit and at the employer’s special request to meet the needs of the particular and unusual assignment. B. However, in this special one-day assignment, travel time between the employee’s home and the airport or railway station is considered commute time and, therefore, is compensable.

Overnight Travel

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is work time and is compensable. A. Travel time is compensable regardless of work schedule.

• Example: Employee drives to the airport to attend a seminar and has two co–workers as passengers with him/her. Whether the trip is made during normal workdays/workhours or non-normal workdays/workhours (i.e. Saturday or Sunday for an employee who works Monday through Friday) the travel time is compensable; all three employees are compensated.

B. Time spent at a motel with freedom to use time for the employee’s own purposes is not compensable.

C. Time Zone Changes – If the time zone changes during the travel day, the hours should be calculated based upon “actual” hours when calculating compensable time on travel days. A department may wish to use Central Standard Time (CST) for travel days to assist in determining work hours. Local time should be used for all other days of the travel.

• Example: Employee left Lawrence at 9:00 a.m. CST to travel to the airport and arrived at a hotel in Phoenix at Noon Pacific Standard Time (PST) (which is 2:00 CST). Actual hours of travel are 5 hours (9 am to 2:00 CST).
• Example: Employee left a hotel in San Francisco at 8 a.m. PST (which is 10:00 a.m. CST) to travel to the airport and board a return flight. Employee returns to Lawrence at 1:00 p.m. CST (11:00 p.m. PST). Actual hours of travel are 3 hours (10:00 a.m. to 1:00 p.m. CST).

Additional Resources:

Fair Labor Standards Act (FLSA)

University Fair Labor Standards Act (FLSA) Policy

A. When the travel takes place inside or outside the employee’s normal workdays or work hours; the employee is required to be compensated for the travel time to the airport or hotel, regardless of whether the employee is a driver or a passenger. B. The employee is compensated for all required conference events that require the employee to engage in training, attend a meeting, or listen to a speaker. The employee is not compensated for time at social events, meals without speakers or meals when work is not being performed. C. An employer, or the employee with prior approval of the employee’s supervisor, may rearrange the employee’s work schedule within the workweek to avoid additional compensation hours. D. If the time zone changes during the travel day, you will need to count “actual” hours. To determine work hours on travel days, use the Central Standard Time (CST) Zone for both days in order to avoid disadvantaging the employee due to time changes. For non-travel days, use local time.

Travel Example 1 – No Adjustments to Schedules

For this example, the conference began Sunday night at 5:15 pm with a business meeting and ended on Wednesday at Noon. The employee worked his/her normal schedule the days following the conference. No time zone differences.

Total compensation for the day is 8.25 hours (for hours 9:40 am to 6:00 pm).

Total compensation for the day is 8 hours (for hours 8:00 am to Noon and from 12:30 pm to 4:30 pm).

Total compensation for the day is 9.5 hours (for hours 8:30 am – 6:00 pm)

Thursday (back in the office)

Total compensation for the day is 8 hours (for hours 8 am to 5 pm).

Friday (Back in office)

Total compensation for the week is 49.75 hours (i.e., 40 hours at regular time and 9.75 hours at compensatory time earned at the time and a half rate, i.e., 9.75 x 1.5 = 14.25).

Travel Example 2 - Adjusted Work Schedule

For this example, the supervisor has informed the employee that any hours incurred that may result in extra compensation will be adjusted in the remaining workweek. The supervisor has determined the employee should leave early on Thursday and not work on Friday. The conference began Sunday night at 5:15 pm with a business meeting and ended on Wednesday at Noon. No time zone differences.

Total compensation for the day is 8 hours (for hours 8:30 am to 4:30 pm).

Thursday (Back in Office)

Total compensation for the day is 6.25 hours (for hours 8 am to 3:15 pm). No leave is reported.

Friday (No work performed)

Total compensation for the day is 0 hours .

Total compensation for the week is 40.00 hours.

Travel Example 3 – Time Zone Change

Sunday (travel day, so using cst)..

For this example, the employee’s workstation is in Lawrence, Kansas (CST) and the conference is located in Oakland, CA, which is in the PST time zone (i.e., 2 hours earlier). The conference began Sunday night at 5:15 pm (PST) with a business meeting and ended on Tuesday at Noon (PST).

Actual times shown are CST [PST is shown in brackets]

Total compensation for the day is 8.25 hours (for hours 9:40 am to 6:00 pm CST).

Actual times shown are PST as “local” time.

Tuesday (Travel day, so using CST)

Total compensation for the day is 9.5 hours (for hours 10:30 am – 8:00 pm CST).

Total compensation for the 3 days (Sunday, Monday and Tuesday) is 25.75 hours.

FLSA and Travel Time Guidelines for Overtime Eligible Employees (Effective: 05/21/2017)The University of Kansas, Human Resource Management, Carruth-O’Leary Hall, Room 103, 1246 West Campus Road, Lawrence, KS 66045, 785-864-4946 (voice), 785-864-5790 (fax), [email protected] (email).

FLSA Hours Worked Advisor

Travel Time

• Home-to-Work and Return Travel
• Home-to-Work and Return Travel, Employer’s Vehicle
• Travel Other Than Home-to-Work and Return
• Work Performed While Traveling

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Travel time as hours of work, applicability.

This information applies to GS, FP, and FWS EXEMPT and NONEXEMPT employees.

When is Travel Compensable

Time in a travel status away from the official duty station is compensable for EXEMPT and NONEXEMPT employees when the travel is performed within the regularly scheduled administrative workweek, including regularly scheduled overtime. In addition, travel is compensable for both categories of employees for purposes of meeting the daily and weekly overtime standards when it:

• Involves the performance of work while traveling, (e.g., as a chauffeur or courier);
• Is incident to work performed while traveling (e.g., a courier's travel relative to the spot where further travel to deliver a diplomatic pouch would begin);
• Is carried out under such arduous and unusual conditions that the travel is inseparable from work; or
• Results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the employee's return from such an event to his or her official duty station.

For a NONEXEMPT employee, travel meeting the weekly overtime standard (but not the daily overtime standard) also includes:

• Travel as a passenger on an overnight assignment during hours on nonworkdays which correspond to regular working hours; and
• One-day travel as a passenger to and from a temporary duty station (not including travel between home and the employee's normal duty station).

Who Makes the Determination

Officials to whom authority has been delegated to authorize or approve travel on official business are responsible for determining whether travel outside the regularly scheduled workweek meets any of the conditions for hours of work.

How Much Travel Time is Creditable For Pay

When travel outside the normal workweek constitutes hours of work, the following rules will apply in determining the amount of time in a travel status that is deemed hours of work for premium pay:

When is an employee in travel status . An employee is in a travel status only for those hours actually traveling between the official duty station and the point of destination, or between two temporary duty points, and the usual waiting time which interrupts travel.

When traveling by common carrier . Time in a travel status begins with the scheduled time of departure from the common carrier terminal, and ends upon arrival at the common carrier terminal located at the destination. However, when the employee spends 1 hour or more in travel between the common carrier terminal and place of business or residence, then the entire time traveling between the carrier terminal and place of business or residence (that is actual time traveling, exclusive of waiting time at the terminal prior to the scheduled departure time) counts as hours of work.

Waiting time . Usual waiting time between segments of a trip or at common carrier terminals counts as worktime for premium pay (up to 3 hours in unusually adverse circumstances, e.g., holiday air traffic, severe weather) provided travel away from the duty station is compensable because it meets any of the conditions of this Section.

Authority to Order Noncompensable Travel

Congress has not provided a remedy whereby an EXEMPT employee who performs official but noncompensable hours of travel may be compensated (57 Comp. Gen. 43, 50, 1977). A manager does, however, have the authority to schedule official travel that is noncompensable. As a requirement of 5 CFR 610.123, the manager must record the reasons for ordering such travel in a memo to be filed with the employee's Time and Attendance Report (T&A). A copy of the memo must be given the employee if the employee requests it.

Work performed while traveling . In order to meet the intent of the law as defined in the majority of Comptroller General decisions, work performed while traveling must be work which is inherent in the employee's job and which can only be performed while traveling, e.g., chauffeuring, hurricane reconnaissance performed aboard a plane flying into the eye of the hurricane, etc. Discretionary work such as review of a scientific presentation by a scientist or treaty papers by a foreign service officer enroute to a meeting is work which could be performed in an office independently of travel and does not satisfy the definition of work while traveling and is, therefore, not compensable for purposes of overtime. (B-146288, January 3, 1975)

Work incident to work performed while traveling . Travel which is incident to work performed while traveling must also meet the definition of "work performed while traveling" above. Travel which is necessary to meet another mode of travel is compensable for overtime purposes if the traveler performs work while traveling which is an inherent part of the job and which could only be performed while traveling, for example, a motor vehicle operator who is ordered to travel by plane in order to take responsibility for a truck which he or she is then to deliver to its permanent location (57 Comp. Gen. 43 (1977), or a courier who travels to pick up and deliver a pouch (B-178458, dated June 22, 1973). Travel and incidental transport of files is not within the definition since the transportation of files is work not inherent in the job (B-181632, dated April 1, 1975).

Travel under arduous conditions . Arduous means more than the inconvenience associated with long travel delays, unbroken travel, unpleasant weather, or bad roads. Prolonged travel in heavy blowing snow which makes driving difficult but stops short of endangering the employee might be considered arduous. A distinction must be made between travel which is arduous and travel which is hazardous duty. Each case must be judged on its own merits (B-193623,

July 23, 1979).

Travel resulting from an event which could not be administratively scheduled or controlled . An event that cannot be administratively scheduled or controlled implies immediate official necessity for travel. If it is discretionary when the employee begins travel, not including the minimum necessary time to make travel arrangements, the notion of immediate necessity which is implied by an event that could not be scheduled or controlled is lacking and the intent of the law as defined by the General Accounting Office is not satisfied. Therefore, time spent in such travel would not be compensable for overtime purposes

(B-186005, August 31, 1976).

Within the agency's administrative control . Whether the scheduling or timing of the event that precipitates an employee's travel was within the administrative control of the agency is strictly interpreted in decisions of the Comptroller General (CG). Travel on overtime to and from a meeting arranged at the discretion of two Federal agencies is not compensable since agencies have it within their power to ensure that the employee travels during work time (B-146288, January 3, 1975 et alia).

For the same reason, travel to and from training which is conducted by the government, under government contract or by a private institution solely for the benefit* of the government is not compensable since the government has it within its power to ensure that the start and end times of such training allow the employee to travel on work time (B-190494, May 8, 1978; also, 66 CG 620, 1987).

*In William A. Lewis et al, 69 CG 545 (1990). The CG ruled travel on overtime to and from training that is given by a private institution is compensable because government cannot control the private institution or its scheduling of the course. The Lewis opinion further held that the notion of "immediate official necessity for travel" which prior CG decisions have held must be present in travel which responds to an event that is not schedulable or controllable was established by the start time of the class. To be present when the class began, the employees had to travel on Sunday.

NOTE : The regulations which govern training time which is compensable as overtime and travel to and from training are separate and distinct. The circumstances under which premium pay may be paid while an individual is in training are covered in the section titled Premium Pay and Training.

Meeting abroad - a matter of accommodation . An employee's claim for overtime compensation for travel overseas to be present at the opening of a conference with representatives of a foreign government was disallowed. Although the employee's agency indirectly scheduled the meeting through the USAID Mission, the Comptroller General ruled the lack of governmental control envisioned by law and regulation for travel on overtime to be deemed compensable was not present. (Gerald C. Holst, B-202694, January 4, 1982; and B-222700, dated October 17, 1986).

NOTE : The Lewis decision (see discussion above) precipitated a review of CG decisions with the result that government control of events was sufficient to validate all previous decisions except one: Gerald C. Holst, was overruled. In overruling the 1986 decision, the Comptroller General found the agency to lack control of the scheduling of the meeting to an appreciable degree. Further, the start time of the opening conference established the immediate official necessity for travel. Travel, was, therefore, compensable.

Failure to plan . An employee who travels outside his or her normal tour of duty to perform maintenance on equipment so that the equipment can perform necessary functions in accordance with operational deadlines is not performing compensable travel if the maintenance responds to gradual deterioration which could have been prevented if maintenance was scheduled on a timely basis (49 Comp. Gen. 209, 1969).

Two-day per diem rule . An employee may be required to travel on his or her own time if in order to allow the employee to travel during working hours, the agency would be required to pay two days or more per diem. However, the two-day per diem rule does not of itself support an entitlement to overtime compensation for the employee. To be compensable at the overtime rate, travel must respond to an event that could not be scheduled or controlled administratively and there must be an immediate official necessity for the travel to be performed outside the employee's regular duty hours (60 Comp. Gen. 681, 1981).

Return travel . When an employee performs compensable overtime by traveling to an event which could not be controlled or scheduled, he or she is automatically eligible for compensation for return travel to his or her duty station.

Disparity in hours of work means disparate overtime entitlement . Because FLSA provides two situations in which a NONEXEMPT employee, but not an EXEMPT employee, can be paid for travel on overtime hours, (specifically, during hours on nonworkdays which correspond to regular working hours and for one-day travel as a passenger to and from a temporary duty station), it is possible for a NONEXEMPT employee to be paid for travel when an EXEMPT employee in the same situation is ineligible for overtime pay.

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DOL Explains When Employees Must Be Paid for Travel Time

Jul 6, 2018

Eighty years ago the Fair Labor Standards Act (FLSA) established federal minimum wage and overtime requirements for hourly employees. The law’s basic tenet seems straightforward: Employers must pay employees for their “work.” Yet for many employers, compliance with the FLSA on issues such as employee travel time continues to be problematic because the FLSA does not really explain when an employee is at “work.”

The FLSA and Portal-to-Portal Act

The Supreme Court initially explained that “work” time means when an employee’s activities are controlled or required primarily for the benefit of the employer. Congress subsequently added some specifics to the Supreme Court’s expansive definition. The Portal-to-Portal Act, an amendment to the FLSA, provides that employee work time does not include:

(1) Travel to and from the actual place of performance of the principal activity the employee is employed to perform; or

(2) Activities that are undertaken before or after the employee’s principal work activity.

Three Scenarios and DOL’s Opinion Letter FLSA 2018-18

Recently, the U.S. Department of Labor (DOL) issued an opinion letter in response to a company’s questions about travel time pay for a group of hourly employees who repair, inspect and test construction cranes. The employees do not have a fixed work location; they travel to various customer locations each day. They usually work eight to twelve hour days servicing cranes, and generally start work at around 7:00 a.m. Depending on the availability of parts and other factors, the employees may need to stay in a hotel overnight and return in the morning to complete a job. Employees are provided company vehicles that may be used for both work and personal matters.

Three travel time scenarios were considered by the DOL:

(1) Employee travel time from home to the company’s office, using a company vehicle, to obtain a job itinerary and then continue on to various customer locations. Travel time from home to office varies from 15 minutes to an hour, depending on where the employee lives.

(2) Employee travel time from home directly to a customer location; and

(3) Employee travel time by plane on a Sunday from home to an out-of-state destination for a company training that begins at 8:00 a.m. on Monday. The training continues through Friday, with return travel home on Friday after class, or occasionally on Saturday, depending on flight availability.

The first two scenarios involve common commutes to and from work. Under the Portal-to-Portal Act, employees do not need to be paid for time spent commuting between home and work. This generally holds true, even when the employee travels directly from home to different job sites, unless the commute time involved is extraordinary. Once the employee has arrived at the job, however, FLSA regulations require payment for all travel time between job sites during the day. Use of a company-provided vehicle within the normal commuting area typically does not convert the employee’s ordinary commute into compensable work time.

Scenario three implicated how to account for employee travel time away from home, both on the weekend and overnight. Travel away from home is clearly worktime when it cuts across the employee’s usual work day; the employee is simply substituting travel for usual job duties. This also includes travel time on Saturday and Sunday that corresponds to the employee’s normal working hours on other days of the week. The DOL also noted that an employee must be paid for all time the employee is actually required to work while on travel, irrespective of whether or not it falls within the employee’s regular work day.

What Does this Mean to You?

Calculating employee travel time can pose a significant challenge for many employers. There are multiple factors you must take into account, even when an employee is traveling within his home territory. There are no bright lines to establish when an employee has strayed outside his normal commuting area, converting what would have been an unpaid commute into time on the clock. The FLSA requires employers to maintain accurate time records for employees; a failure to do so can result in significant statutory damages and attorneys’ fees.

If you find yourself facing such employee travel circumstances as described here, the employment law attorneys at Bean, Kinney & Korman can assist in evaluating your company’s particular environment and help craft a reasonable solution that will address the situation.

• R. Douglas Taylor, Jr.

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More from the DOL – When Is Travel Time Compensable?

As noted elsewhere in this E-Update, the Department of Labor’s Wage and Hour Division issued several opinion letters under the Fair Labor Standards Act (FLSA) this month, including this one on travel time for non-exempt employees. Opinion letters respond to a wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters for guidance.

Under the Portal-to-Portal Act, which is an amendment to the FLSA, a non-exempt employee’s time spent traveling to and from their workplace – whether a fixed location or different job sites – is not compensable if it occurs “before the employee starts or after the employee stops his principal activity or activities.” However, “travel from [a] designated place to the work place is part of the day’s work, and must be counted as hours worked when 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[.]” Further, preliminary or postliminary travel, even if required by the employer, is only compensable if it is “integral and indispensable to the principal activities that [the] employee is employed to perform,” meaning that it is required in order for the employee to perform their principal activities.

The FLSA regulations also address other travel circumstances. Special one-day travel to another city is compensable worktime, although the employer may deduct the normal commuting time. Overnight travel is considered travel away from home, and is compensable when the travel time occurs during the employee’s normal working hours, even on non-work days – but not travel time that occurs outside the employee’s normal working hours. And required driving time is compensable, except that if the employee could have taken public transportation but chooses to drive, the employer may choose to pay either the driving time or the time that it would have paid if the employee had taken public transportation.

The WHD addressed travel time questions in the context of a construction employer, but the principles may be generally applicable to other employers:

• At the beginning of the day, the foreman is required to go to the employer’s principal place of business to retrieve a truck that is required to transport tools and materials around separate job sites. The foreman must return the truck at the end of the day, since the trucks are kept at the principal place of business for safety and security reasons. Under these circumstances, an employee who is required to go to the principal place of business to retrieve tools or equipment required to perform their work at a separate job site and return the tools or equipment at the end of the day is performing activities that are integral and indispensable to their principal activities at the job site – and the time spent traveling between the principal place of business and the job site is compensable, whether the job site is local or remote (and requiring overnight stays).
• Laborers may travel directly to the local job site, and their normal commute time is not compensable . But some choose to go to the employer’s principal place of business and ride to the job site on the company truck, driven by the foreman. Where an employee makes a voluntary choice to engage in this extra travel, the travel time between the principal place of business and the job site is not compensable .
• As noted above, an employee who is a passenger is compensated for travel time to an out-of-town project that occurs during their normal work hours, even on non-working days , but not for travel time that occurs outside those hours.
• An employee is offered a ride on the company truck to out-of-town project by the employer, but chooses to drive instead . The regulation addressing other forms of travel speaks only to public transportation, but the WHD notes that the regulations do not address every conceivable situation, and the principles expressed in that regulation apply equally to “other offers of transportation.” Thus the employer would have the option to count as compensable worktime either (1) the actual time driving to the remote project or (2) the amount of time that would have been compensable as a passenger . WHD further notes that its regulations “allow an employer to control those travel costs by offering public transportation to a remote job site on its preferred schedule.”
• A laborer on an out-of-town project is offered overnight accommodations, but chooses to drive back and forth to their home. The initial drive to and final drive from the remote job site would be compensated as above. However, the voluntary intervening drives to and from the remote job site from home are not compensable .

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Fair Labor Standards Act: Compensation for Travel Time

Published: February 1, 2023

This content conveys general information. Do not use it as a substitute for legal advice. Any attorney general opinions cited are available from the League’s Research staff.

Provides guidance in determining when compensation must be paid under the Fair Labor Standards Act (FLSA) when non-exempt employees travel for work purposes.

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WAGE AND HOUR DIVISION

UNITED STATES DEPARTMENT OF LABOR

Fact Sheet #23: Overtime Pay Requirements of the FLSA

Revised October 2019

NOTICE: On August 30, 2023, the Department of Labor (Department) announced issuance of a Notice of Proposed Rulemaking (NPRM), Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees . The NPRM proposes to update and revise the regulations issued under section 13(a)(1) of the Fair Labor Standards Act implementing the exemption from minimum wage and overtime pay requirements for executive, administrative, and professional employees. Proposed revisions include increasing the standard salary level and the highly compensated employee total annual compensation threshold, as well as providing an automatic updating mechanism that would allow for the timely and efficient updating of all the thresholds to reflect current earnings data.

This fact sheet provides general information concerning the application of the overtime pay provisions of the FLSA .

Characteristics

An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work.

Requirements

Unless specifically exempted, employees covered by the Act must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay. There is no limit in the Act on the number of hours employees aged 16 and older may work in any workweek. The Act does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, as such.

The Act applies on a workweek basis. An employee's workweek is a fixed and regularly recurring period of 168 hours -- seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

The regular rate of pay cannot be less than the minimum wage . The regular rate includes all remuneration for employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate include pay for expenses incurred on the employer's behalf, premium payments for overtime work or the true premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, gifts and payments in the nature of gifts on special occasions, and payments for occasional periods when no work is performed due to vacation, holidays, or illness.

Earnings may be determined on a piece-rate, salary, commission, or some other basis, but in all such cases the overtime pay due must be computed on the basis of the average hourly rate derived from such earnings. This is calculated by dividing the total pay for employment (except for the statutory exclusions noted above) in any workweek by the total number of hours actually worked.

Where an employee in a single workweek works at two or more different types of work for which different straight-time rates have been established, the regular rate for that week is the weighted average of such rates. That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs. In addition, section 7(g)(2) of the FLSA allows, under specified conditions, the computation of overtime pay based on one and one-half times the hourly rate in effect when the overtime work is performed. The requirements for computing overtime pay pursuant to section 7(g)(2) are prescribed in 29 CFR 778.415 through 778.421 .

Where non-cash payments are made to employees in the form of goods or facilities, the reasonable cost to the employer or fair value of such goods or facilities must be included in the regular rate.

Typical Problems

Fixed Sum for Varying Amounts of Overtime: A lump sum paid for work performed during overtime hours without regard to the number of overtime hours worked does not qualify as an overtime premium even though the amount of money paid is equal to or greater than the sum owed on a per-hour basis. For example, no part of a flat sum of $180 to employees who work overtime on Sunday will qualify as an overtime premium, even though the employees' straight-time rate is $12.00 an hour and the employees always work less than 10 hours on Sunday. Similarly, where an agreement provides for 6 hours pay at $13.00 an hour regardless of the time actually spent for work on a job performed during overtime hours, the entire $78.00 must be included in determining the employees' regular rate.

Salary for Workweek Exceeding 40 Hours: A fixed salary for a regular workweek longer than 40 hours does not discharge FLSA statutory obligations. For example, an employee may be hired to work a 45 hour workweek for a weekly salary of $405. In this instance the regular rate is obtained by dividing the $405 straight-time salary by 45 hours, resulting in a regular rate of $9.00. The employee is then due additional overtime computed by multiplying the 5 overtime hours by one-half the regular rate of pay ($4.50 x 5 = $22.50).

Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked.

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: http://www.dol.gov/agencies/whd and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.