The Fair Labor Standards Act (FLSA) has many nuances that can create legal pitfalls for employers who are unfamiliar with each and every one of its intricate requirements. One such area is the compensability of a non-exempt employee's time spent traveling to a location that requires an overnight stay away from his or her home. As a general matter, the FLSA requires employers to pay non-exempt employees for their rime spent working. While the FLSA does not explicitly define what constitutes "work," the Portal-to-Portal Act provides that employers do not need to compensate employees for traveling to and from the actual place of work performance and the employee's home, and FLSA regulations reiterate that normal travel from home to work is not compensable work time. Thus, these standards make clear that compensable work time generally does not include time spent commuting to or from work.

However, compensation for a non-exempt employee's travel time that requires an overnight stay is subject to a different FLSA regulation that provides an employee's time spent driving to a location that keeps the employee away from home overnight is compensable when it cues across the employee's workday or the employee's regular working hours on nonworking days. The Regulation provides as follows:

Travel 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 nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

 

29 C.F.R. § 758.39.  

For example, imagine that Pete, an hourly employee who regularly works 9 a.m. to 5 p.m., Monday through Friday, leaves work on Friday afternoon at 2 p.m. and drives three hours away from his home community to the location of a training seminar to be held the following day from 9 a.m. to 4 p.m. Immediately following the training seminar, Pete drives the three hours back to his home. Under this scenario, Pete must be compensated for the three hours he spent driving on Friday afternoon and for the one hour he spent driving between 4 p.m. and 5 p.m. on Saturday (whether the time spent at the training seminar is compensable is an issue for another day and the issue is subject to different regulations focused on not only whether the training was during Pere's normal hours, but also whether it was job-related, voluntary, and if other work is performed concurrently). What's more, if Pere had worked a full week leading up to the training seminar, that hour from 4 p.m. to 5 p.m. driving on Saturday would constitute overtime and, therefore, it must be paid at time and one half.