Wage theft is a huge problem in the United States. Gone are the days when most workers would drive to a factory, clock in, work eight hours and go home. Today employers expect us to travel to different work sites, take phone calls while at home and even schedule appointments from home. Often employers don’t follow the rules and cheat their employees out of thousands of dollars.
For example, we have often talked to home healthcare workers who claim they are not getting paid for driving between their different appointments. Workers want to know the rules and know when they should be paid for travel.
The U.S. Department of Labor has published guidelines regarding a worker’s eligibility for pay while traveling or commuting. Because travel today can be as simple as driving across town to a meeting or spending days on the road working far from home, the rules are somewhat fact specific.
Understanding that the Department of Labor guidelines are just that, guidelines, lets examine some of the more common scenarios.
Fair Labor Standards Act and Pay for Time Worked
The federal Fair Labor Standards Act (FLSA) governs most workers in the United States. Passed at the tail end of the Great Depression, the law intends to protect workers and insure they are properly paid. It has been almost 80 years since the law was passed. That means today there are exceptions and exceptions to the exceptions.
The FLSA sets forth a federal minimum wage and requires most workers be paid at time and one half rates if they work more than 40 hours in a 7-day work period. (Some unscrupulous employers try to declare all workers to be “managers” or tell workers that because they are salaried, they are exempt from overtime. Don’t believe it. If you have questions, speak to the Department of Labor or us. Wage theft is more prevalent you may think, particularly in certain industries.)
Many states also have wage and hour laws. Most states adopt the federal standards but it is not uncommon to find states and even cities with their own higher minimum wage laws. A few states such as California have even more stringent overtime protections.
With this as a background, lets look at some common travel scenarios.
Home to Work Travel (Commuting)
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 commuting, which is not considered work time. There is no requirement in the FLSA to pay workers for routine commuting.
Courts have carved out an exception, however, if the worker is required to do substantial work before leaving the home. Occasionally calling your boss in the morning probably isn’t enough but if your employer requires you to do substantial work at home such as scheduling appointments, logging onto your computer or printing documents, there may be enough to trigger a requirement for pay. If the court finds that your work day started at home, then the subsequent drive to work could also be eligible for pay status.
Home to Work on a Special One Day Assignment in Another City
Today many workers are sent to a different work site or another city for a meeting. We see this frequently with healthcare workers, technicians and construction workers. Chain store workers are often sent to help in other locations too. The Labor Department guidelines are intended to cover an employee who regularly works at a fixed location in one city but then 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 that time the employee would normally spend commuting to the regular work site. That means if your normal commute is 10 minutes but you are sent to a different city and it takes 2 hours to drive, your employer should pay for at least 1 hour and 50 minutes of your travel time.
Travel That is All in a Day’s Work
Time spent by an employee in travel as part of their 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 (Long Distance Travel)
Travel that keeps you away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across your workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. That means if you are forced to be away from home on your day off, you should get paid for that time. If that causes you to exceed 40 hours then you should be paid overtime as well.
While you may be inconvenienced spending 3 hours on a plane, the Department of Labor as matter of enforcement policy does not consider that as work time. Some courts do, however.
Remember, most workers are entitled to be paid for all hours worked and to be paid overtime at the rate of time and one-half for hours in excess of 40 hours during a 7-day period. Even salaried workers may be eligible for overtime. Simply because your boss says you are exempt from overtime doesn’t make it legal.
Damages for Wage Theft Claims
If you were forced to work off the clock or without overtime pay within the past 3 years, you have rights – and you don’t have to take on the company alone. Time traveling away from home or for working at home every day can quickly add up. It is not uncommon for workers with wage theft claims to find they are owed hundreds of hours of pay and often at premium rates. If you are forced to file a wage and hour class action, you could receive double damages. That means double damages for time spent working on reports at home, double damages for driving to another city and maybe even triple damages if you worked more than 40 hours (time and one half premium pay multiplied by double damages).
In most cases, the employer also has to pay your legal fees.
For more information, contact attorney Katherine Holiday at or by telephone at (414) 258-2375. All inquiries are kept strictly confidential. Not ready to call? Visit our wage theft page for more information or submit your information online.
MahanyLaw – America’s Wage Theft and FLSA Overtime Lawyers
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