As everyone knows who has been following the issue, new federal regulations will be coming out soon that will redefine “exempt” employment. These new rules are expected to result in many heretofore exempt positions being redefined as non-exempt and therefore eligible for overtime pay. So the time is right to review some of the more complex applications of the overtime rules.
In last week’s everythingpeople.™ This Week! ASE looked at the application of the overtime rules to overnight travel. This week we review the FLSA rules that apply to travel that is not overnight; we will look at the fictional case of Mary the Machine Technician, and the Wage and Hour rule referred to as “Travel that is all in a Day’s Work.”
Mary works as a machine technician for a company that repairs and maintains its customers’ equipment. As such she has to frequently travel to customer sites to maintain or repair broken equipment. Her normal work hours are 7:30 a.m. – 4:00 p.m., with a half-hour for lunch, Monday through Friday. Normally Mary first reports to her home office to pick up tools and receive work orders for the day.
Mary leaves home for her office at 7:00 a.m. Because traffic is light she arrives at 7:20. She enters the building and, seeing a coworker she knows, greets him and engages in a short conversation about personal matters. Is any of this time considered hours worked under the FLSA? No. The Portal-to-Portal act states in section 4(a):
“no employer shall be liable for failure to pay the minimum wage or overtime compensation for time spent walking, riding, or traveling to and from the actual place of performance of the primary activity or activities which such employee is employed to perform either prior to the time on any particular workday at which such employee commences , or subsequent to that time on any particular workday at which he ceases, such principle activity or activities.” §785.34
So under the Portal-to Portal Act, Mary is not working when she is traveling from home to her work. This includes situations where she may work at different job sites as well.§785.35. Rule: Travel time to and from one’s normal place of business is not hours worked,
Mary gets to her work area at 7:30 a.m. to receive her work orders for the day, She gets her tools and travels to her first assignment. It takes Mary 25 minutes to get to her first job assignment for the day. Is this travel time compensable? Yes. Rule: “Time spent by an employee in travel as part of his or her principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.”§785.38. This is the heart of the Travel that is all in a day’s work rule.
Mary works at the first customer’s site till 11:45 a.m., when she packs up her tools and heads to lunch. Mary is off the clock while she goes to her half- hour lunch. But then she travels to her next worksite, where she works till 4:00 p.m. She leaves her last assignment and heads home. Is this travel time compensable? The answer is no under the FLSA even though in this situation and the the circumstances above travel time cuts across the workday, although the company may choose to pay her until 4:30 p.m. since her normal schedule runs to that time. Rule: this is the other half of the home-to-work rule; so travel time from a worksite to home is not hours worked.
When Mary gets home at 4:30, she receives a call from her home office telling her one of her customer’s pieces of equipment broke down, and she must travel to that customer’s worksite to make an emergency repair. The worksite is 45 minutes away. Mary heads to the customer’s worksite and does the repair work.
Is the time travel from her home to the emergency call time worked? Yes. Rule: Under the Home- to-work In Emergency Situations section 785.36, Mary is entitled to pay even though her travel was from home to a work-site.
Mary finishes the emergency repair at 9:00 p.m. and leaves the customer’s worksite at that time. What about travel time from the customer’s place of business back home again? Yes. This is generally considered worktime also under the “Emergency Situations.” “All time spent on such travel is worktime.”§785.36
Mary has worked a total of 12.5 hours for the day, and if she puts in a normal workweek assuming the rest of her week stayed to normal schedule, she would be entitled to 4.5 hours of overtime at time-and-one-half her regular rate of pay. Note: If the company chose by policy to pay Mary for the 30 minutes she did not work from 4:00 to 4:30, those 30 minutes were still not “time worked,” and therefore would not be included in calculating her overtime pay.
Source: Interpretive Bulletin, Part 785. Hours Worked Under the Fair Labor Standards Act of 1938, As Amended