By Larry Levy, Employee Relations Management
The following information applies only to non-exempt employees and not exempt employees. Non-exempt employees are your employees who provide your services and products and are compensated by their hours of work. If they work over eight hours in a day or over forty hours in a week they receive overtime.
Most of you know that you do not have to pay for the non-exempt employee’s commute from his or her home to the office. But pay-for-travel questions get confusing especially when they involve non-exempt workers, driving materials, bringing large tools to the jobsite, traveling between jobsites and driving other workers.
One of the best ways to determine the issue is to examine the purpose of the trip, e.g., is the trip for the company’s benefit or for the employee’s benefit? Generally speaking, you have to pay for travel that benefits the employer but not for travel benefiting the employee.
Under the Fair Labor Standards Act (FLSA) and the Portal-to-Portal Act (an amendment to the FLSA), regular to and from work doesn’t count as working time unless the employee actually works en route. This is true even if the worksite changes throughout the day. It doesn’t matter whether the employee works at a fixed location or different work sites. For example, an employee driving to work from home without making stops need not be paid. On the other hand, if the employee works for a general contractor and is using his personal truck to transport lumber from his home to the jobsite he is benefiting the employer (by transporting the lumber) and by definition is “working” while transporting lumber. Similarly, this same employee who transports heavy machinery and power equipment (no lumber) to the jobsite is also benefiting the employer and is working by moving this equipment. In both situations the employee should be paid from the time he leaves his home until he arrives on the jobsite. What about the carpenter who leaves his home with an empty truck but stops at the lumber yard to pick up a load of lumber? Driving from his home to the lumber yard is time benefiting the employee and she/he need not be paid. However, once he arrives at the lumber yard he “begins” to work (benefiting the employer) and therefore he should be paid the moment he drives into the parking lot of the lumber yard.
What if you require employees to meet at a central location to receive their assignments, supplies and tools? In this situation the employees should be paid for the commute from the central location to the work site. Why? Receiving an assignment and picking up tools is “working”. An alternative is to have all your employees drive directly to the work site and eliminate meeting at the central location.
What about extended commutes? Suppose you get a job in Foster City and your home office is in Santa Rosa requiring your employees to make a two-hour trip in the height of the commute time. At the end of the day your employees face another two-hour commute from Foster City to Santa Rosa. This means they have a four-hour commute without compensation on top of an eight hour work day. Is that fair? In my mind, the answer is no, and the State Labor Commissioner agrees with me. My recommendation would be to compensate your employees during the second hour of commute (travel) but not necessarily at their regular rate of pay.
Can you pay your employees variable rates of pay? Can you pay a commute wage that is different from the regular working wage? The answer is yes, as long as the commute wage is above both the federal and state minimum wages. You can pay your employees a travel commute wage of $10.00 per hour and pay the same employees $25.00 per hour once she/he begins work at the work location. This will drive your bookkeeper nuts particularly when the employee works overtime. This variable wage does not apply to those employers in construction. In a recent amendment to the Industrial Welfare Commission Wage Order I learned that construction employees must be paid their regular rate of pay for all travel time.
What about traveling to multiple work sites during the course of the work day? Employees are to be compensated for all travel to and from the work sites and for those non-construction employers they may pay variable wages.
How do you compensate a worker (non-exempt) who attends an out-of-town conference or seminar during a day? Most travel throughout the day is to be compensated other than the meal periods. Travel from the home to the airport is not compensated because it falls within the normal home-to-office commute; if the commute to the airport is lengthy it is still not compensated unless it runs into a second hour. All time in flight, riding in a taxi, attending the event (conference, seminar, trade show, etc.), and pre and post-event activities is compensable.
Larry Levy is the owner of Employee Relations Management, a Human Resource Consulting firm based in Marin County. Larry can be reached at (415) 892-1497