Seyfarth Synopsis: Travel time pay is a nebulous area of the law that can leave many employers stalled on the starting blocks. Here are some guidelines to help ensure that employees get paid for all hours worked, including any compensable travel time.

Ready. Set. Not so fast.

It makes common sense to most people that commute time—the time an employee travels between home and work and back again—need not be paid. But at what point does an employee’s time on the road become compensable?

What travel time counts as hours worked?

The answer depends on whether travel time is “hours worked.” California Wage Orders define “hours worked” as the time during which an employee is (a) subject to the employer’s control or (b) the employee is suffered or permitted to work, whether or not required to do so. If travel time falls under either category, the employer must pay for the time spent traveling.

A few points of note:

• A potential exception to the no-pay-for-commuting rule exists when employees carry business-related tools or materials in their car to a worksite or work meeting. A recent California court held that where employees can use a vehicle for personal purposes during the commute, and are not required to drive a particular route, they are not subject to control of the employer even if they are transporting tools. But the DLSE opines that if an employee must deliver equipment or goods to the worksite for the employer, the travel time is compensable.
• Labor Code section 2802 requires employers to reimburse employees for automobile costs (mileage, wear and tear, etc.) the employee incurs when being required to use a car for work. So while normal commute expenses are not reimbursable, expenses required beyond the reasonable commute require reimbursement. The DLSE has stated that paying the IRS mileage rate (currently $0.54 per mile) is a “presumptively reasonable” reimbursement rate.
• Check out our prior blog post on travel time issues here, for more detail regarding compensation for travel time during the workday versus overnight travel out of town.

Getting the Green Light.

So we’ve reached the finish line, right? Hold your horses. Determining what constitutes travel time is a fact-sensitive inquiry that may not be all that simple to analyze in all circumstances. Here are some scenarios where drive time has been found to be compensable:

• If an employee must attend an offsite conference or meeting, the time spent traveling to and from the meeting in excess of the employee’s normal commute is compensable.
• Any time spent in reaching the airport or train station that is over and above the time spent in the employee’s normal commute is compensable.
• Travel to a remote work site from an employee’s home may be compensable if the time spent goes beyond the employee’s normal commute.
• Once an employee reports to work, any work-related travel during the day is compensable. The same goes for time traveling for a special assignment or emergency outside of regular hours.

Finally, remember that California requires employers to record all hours worked, including travel time. And because any time spent traveling is compensable, all compensable travel time in California counts toward the number of hours worked in calculating any required overtime premium pay.

Keep in mind that employers may establish a separate rate for travel, as long as it does not fall below the minimum wage, and as long as the employee is notified of the travel rate in advance.

Workplace Solution:  California employers must implement a clear travel policy to ensure compliance with this tricky area of the law. If you have any questions or need assistance drafting such a policy, please feel free to contact any of our attorneys.

Edited by Coby M. Turner.