As previously reported, there continues to be much litigation under the FLSA. According to statistics from the U. S. District Courts there were over 8,000 FLSA suits filed in Federal District Courts during the past year. There continues to be increases each year as plaintiffs’ attorneys find new areas to pursue. In addition, DOL is being very aggressive in enforcement of the Act and, in virtually all investigations, they are seeking liquidated damages in addition to payment of back wages. The assessment of liquidated damages, in effect, doubles the amount of the wages that are being sought. Further, if the employer has been investigated previously and was found to have violated the FLSA, they are also assigning Civil Money Penalties which can range up to $1,100 per employee that is found to be due back wages.
One of the most confusing areas of the FLSA is determining whether travel time is considered work time. The following provides an outline of the enforcement principles used by Wage and Hour to administer the Act. These principles, which apply in determining whether time spent in travel is compensable time, depend upon the kind of travel involved.
Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.
Home to Work on a Special One-Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one-day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct (not count) time the employee would normally spend commuting to the regular work site. Example: A Huntsville employee that normally spends ½ hour traveling from his home to his work site that begins at 8:00am is required to attend a meeting in Montgomery that begins at 8:00 am. He spends three hours traveling from his home to Montgomery. Thus, the employee is entitled to 2 ½ hours (3 hours less ½ hour normal home to work time) pay for the trip to Montgomery. The return trip should be treated in the same manner.
Travel That is All in the Day's Work: Time spent by an employee in travel as part of his/her principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.
Travel Away from Home Community: Travel that keeps an employee away from home overnight is considered as travel away from home. It is clearly work time when it cuts across the employee's workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Wage and Hour does not consider as hours worked that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
Example – An employee who is regularly scheduled to work from 9 am to 6 pm is required to leave on a Sunday at 3pm to travel to an assignment in another state. The employee, who travels via airplane, arrives at the assigned location at 8pm. In this situation the employee is entitled to pay for 3 hours (3pm to 6pm) since it cuts across his normal workday but no compensation is required for traveling between 6pm and 8pm. If the employee completes his assignment at 6pm on Friday and travels home that evening none of the travel time would be considered as hours worked. Conversely, if the employee traveled home on Saturday between 9am and 6pm the entire travel time would be hours worked.
Driving Time – Time spent driving a vehicle (either owned by the employee, the driver or a third party) at the direction of the employer transporting supplies, tools, equipment or other employees is generally considered hours worked and must be paid for. Many employers use their “exempt” foremen to perform the driving in order not have to pay for this time. If employers are using nonexempt employees to perform the driving they may establish a different rate for driving from the employee’s normal rate of pay. For example if you have an equipment operator who normally is paid $20.00 per hour you could establish a driving rate of $10.00 per hour and thus reduce the cost for the driving time. The driving rate
must be at least the minimum wage. However, if you do so you will need to remember that both driving time and other time must be counted when determining overtime hours and overtime will need to be computed on the weighted average rate.
Riding Time - Time 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. Where 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. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job, which he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.
The operative issue with regard to riding time is whether the employee is required to report to a meeting place and whether the employee performs any work (i.e. receiving work instructions, loading or fueling vehicles and etc.) prior to riding to the job site. If the employer tells the employees that they may come to the meeting place and ride a company provided vehicle to the job site and the employee performs no work prior to arrival at the job site then such riding time is not hours worked. Conversely, if the employee is required to come to the company facility or performs any work while at the meeting place then the riding time becomes hours worked that must be paid for. In my experience when employees report to a company facility there is the temptation for managers to ask one of the employees to assist with loading a vehicle, fueling the vehicle or some other activity, which begins the employee’s workday and thus makes the riding time compensable. Therefore, employers should be very careful that the supervisors do not allow these employees to perform any work prior to riding to the job site. Further, they must ensure that the employee performs no work (such as unloading vehicles) when he returns to the facility at the end of his workday in order for the return riding time to not be compensable. Recently, an employer told me that in an effort to prevent the employees performing work before riding to a job site he would not allow the employees to enter their storage yard but had the supervisor pick them employees up as he began the trip to the job site. In the afternoon the employees were dropped off outside of the yard so they would not be performing any work that could make the travel time compensable.
On a different subject, in 2013 Wage and Hour had issued some changes to regulations regarding the applicability of the FLSA to “Home Care” workers that were to become effective on January 1, 2015. However, a Home Care Employers group had filed suit contesting the new regulations and a U. S. District Court had suspended the new regulations. On August 21, 2015, the U. S. Court of Appeals for the District of Columbia overturned the lower court decision and allowed the regulations to take effect. As this time I do not know when they will actually take effect but I will let you know as soon as I learn of the effective date.