On November 3, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued opinion letter FLSA2020-16, regarding the compensability of travel time for non-exempt (hourly) foreman and laborers. These are issue that frequently arise with construction employers, so it is nice the DOL has finally provided some additional guidance. Especially where, as the DOL finally acknowledged, the employee benefits from the arrangement.
This opinion letter considers three commute scenarios. The first is local job sites close to, or within the same city as employer’s principal place of business, wherein the foreman hops in a company vehicle at the principal place of business and drives to the job site and laborers either ride with the foreman or drive directly to the job site. The second is remote job sites, which the DOL describes as a job site between 1½ to 4 hours away from the business. Here, the employer pays for hotel accommodations and a per-diem meal stipend, foreman receive and return a company vehicle at the beginning and end of the job, and laborers drive their own vehicles to and from the remote job site (or ride with foreman). The third scenario is the same as the second, except that the laborers decide to drive home instead of staying at a hotel.
In these scenarios, the DOL opined that the foremen’s travel time between the employer’s principal place of business and job sites is compensable, while their travel time to and from home and the employer’s place of business is not. The DOL’s opinion turns on the fact that the foremen are required to report to the central location as they need the company truck (which the inquiring company required to be secured at its place of business) to transport tools and materials around the job site—an integral part of the job. This is not earth-shattering, and is the scenario that is most easiest to identify and answer.
Regarding laborer’s time in these scenarios, their time is not compensable under the first scenario as this travel constitutes normal commuting between work and home. In the second, it is compensable regardless of whether they drive or are passengers and the travel time cuts across their normal work hours. Passenger travel time is generally not compensable outside of the employee’s normal working hours, unless it was during normal working hours on a day the employee normally has off. In the third scenario, laborers would not be compensated for anything beyond the first and last drive to the remote job site as it is deemed time at their personal disposal. These examples (detailed in the opinion) do help ferret out common situations otherwise somewhat murky.