The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently issued two new opinion letters. Of particular interest is opinion letter FLSA2020-16 addressing compensability of employee travel time in certain situations involving construction sites located away from the employer’s principal place of business. Specifically, the letter discusses the compensability of a non-exempt (e.g., overtime-eligible) foremen and laborer’s travel time under the Fair Labors Standards Act (FLSA). An opinion letter is an official document authored by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. Opinion letters represent official statements of agency policy.
The DOL discusses three scenarios in which a construction company has job sites in various locations and employs foremen and laborers, all of whom are non-exempt under the FLSA. For safety and security reasons, the company keeps its trucks at its principal place of business. In each scenario, the company explains that foremen are required to travel to the employer’s place of business to retrieve a company truck; drive the truck to the job site, where it is used to transport tools and materials around the job site; and return the truck to the employer’s place of business to secure it.
- Local job sites: The job site is local; that is, close to or within the same city as the employer’s principal place of business. Each foreman retrieves a company truck in the morning from the employer’s principal place of business, drives it to the job site, and returns it at the end of the day. You state that laborers may choose to “drive directly to the job site” or “drive to the principal place of business and then ride to the job site with the foremen[.]”
- Remote job sites: The job site is between 1-½ and 4 hours’ travel time from the employer’s principal place of business. The employer pays for hotel accommodations for all employees who work at the job site and pays to those employees a per-diem meal stipend. Each foreman retrieves a company truck from the employer’s principal place of business at the beginning of the job, drives it to the job site, and returns it at the end of the job. Laborers “are to drive their personal vehicles” to and from the remote job site at the beginning and end of the job, but some “want to drive their personal vehicles to the employer’s principal place of business and ride to and from the job site with the foremen[.]”
- Employees commute to remote job site: The facts are the same as in Scenario Two, but the laborers choose to travel between the remote job site and their homes each day rather than stay at the hotel.
The DOL concluded that the foremen’s travel time is compensable in every scenario; that the laborers’ travel time is not compensable in Scenario One; that the laborers’ travel time may be compensable in Scenario Two; and that the laborers’ intervening travel time in Scenario Three—he drives from the remote job site to home and back between the beginning and end of the job—is not compensable.
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