By Dana Peterson and David Rosenberg

In today’s increasingly mobile workplace, employers often require their non-exempt employees to head out of the office for such things as client meetings, off-site events and training.  Understanding when you must pay employees when they’re on the move might help you avoid a train wreck down the road (pun intended.)

The basics.  If you’ve been following our blog with any regularity, the following should come as no surprise: when determining whether travel time is compensable, the applicable California and federal standards differ quite a bit.   For instance, federal law defines “hours worked” as: (a) all time during which an employee is required to be on duty or be on the premises or workplace of the employer, and (b) all time during which an employee is “suffered or permitted to work,” whether or not the employee is required to do so.

By contrast, California defines the term “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all time the employee is suffered or permitted to work, whether or not required to do so.”  I.W.C. Wage Orders, Section 2 (emphasis added).  Therefore, employees must be compensated for time that they are “subject to the control” of the employer, even if they are not “suffered or permitted to work” during that time. 

Enough with the legal jargon, when do I need to pay for travel time?

Commuting Time:  Under both California and federal law, travel time to and from work does not ordinarily constitute “hours worked” and is not compensable.  However, commuting travel time may be compensable under California law if the employee is subject to the control of the employer during the commute.

  • What do you mean by “control”?  Some California courts have found that if an employer requires its employees to meet at a designated place and use the employer’s transportation (an employer-owned bus, for example) to and from the work site, the time spent waiting for and sitting on the bus is compensable.  By contrast, if the employer allows the employee the option of using his or her own mode of transportation or the employer-provided transportation, and the employee voluntarily chooses to use the employer-provided transportation, commuting time to the job site is not compensable.  See Morillion v. Royal Packing Company 22 Cal.4 th. 575 (2000); Overton v. Walt Disney Company, 136 Cal. App. 4th 263 (2006).

Travel During the Workday:  Travel time during the workday is typically counted as hours worked if it is required by the employee’s job.  Therefore, travel time that occurs in addition to regular working hours may be compensable if it is performed pursuant to the employer’s instructions.

  • Exceptions:  The exceptions include, but are not limited to situations where an employee travels out of town and completes the trip in a single day, an employer need not compensate any employee for: (1) travel time to the terminal of a common carrier; or (2) uninterrupted and duty-free meal times.  Time spent in transit that requires an employee to go outside his or her normal commute, however, may also be compensable.

Overnight Travel Out of Town:  Overnight travel out of town is one area where significant differences exist between California and federal law.  Under federal law, travel time during normal working hours (on both the employee’s normal working days and normal days off) is counted as “hours worked.”  However, travel hours outside of normal working hours spent as a passenger on a train, bus, airplane, boat or automobile need not be counted unless the employee is actually simultaneously working.

In California, travel time may be hours worked even if the travel time is not during the employee’s normal working hours. Therefore, under California law, employees’ counsel may argue that compulsory travel time constitutes “hours worked,” even if the employee is just waiting in line to purchase a ticket, having a cocktail at the airport bar when the flight is delayed, checking bags, or taking a nap or reading the newspaper as he or she rides on the bus or plane. 

  • Please tell me there are exceptions!  In California, time spent by employees taking a break to order and eat a meal or to engage in purely personal pursuits (for example, taking an extra day or part of a day at the beginning or end of the trip to visit friends or relatives, or sleeping at the hotel) is not compensable.   

Workplace Solutions: Employers that require non-exempt employees to travel during the workday or out of town can reduce the total amount of travel time pay by utilizing the following strategies:

  • Schedule employee travel time in such a way as to avoid unnecessary overtime; and
  • Establish a different rate of pay for travel time.  This strategy is permissible, so long as the rate is not less than the minimum wage, the employee is notified of this different rate prior to undertaking the travel time, and any different rates worked in the same work weeks are considered for purposes of determining overtime rates.

Edited by Chelsea Mesa