Is Drive Time Paid? Shop-to-Job Travel Under the FLSA

“Do I pay the guys for the drive?” has two confident answers, yes and no, and each is half right. Some drive time is work time under federal law and some is not. What decides it is where the drive starts, what happened before it, and whether you told anyone to be somewhere.

The federal rules are in 29 CFR Part 785, the Labor Department’s interpretation of “hours worked” under the Fair Labor Standards Act. The travel sections run from 785.33 to 785.41, and the department’s Fact Sheet #22 summarizes them. Here they are, one situation at a time.

Home to the first job: usually not work time

Section 785.35: an employee who travels from home before the regular workday and returns home at the end of it is doing ordinary home-to-work travel, and that is not work time. The rule adds that this is true whether he works at a fixed location or at different job sites, which is the normal life of a crew.

Two details from 785.34, which applies the Portal-to-Portal Act. First, driving a company vehicle to and from work is not counted when it is within the normal commuting area for your business and there is an agreement between you and the employee about it. Second, ordinary home-to-work travel need not be counted as hours worked even if you agree to pay for it. Paying for the commute does not by itself turn it into hours worked.

Shop to the job: usually work time

This is the one that catches contractors. Section 785.38 says that where an employee is required to report at a meeting place to receive instructions, to perform other work there, or to pick up and carry tools, the travel from that place to the work site is part of the day’s work and must be counted as hours worked, regardless of contract, custom or practice.

So if the crew meets at the shop at 6:30 to load the truck and hear the day’s plan, the paid day starts at 6:30, and the drive to the site is paid time. A handshake deal that “the clock starts at the site” does not change that; the rule says so in as many words.

Between jobs, and back to the shop

Travel from job site to job site during the workday is work time (785.38, and Fact Sheet #22). The end of the day turns on where you send them. The rule’s own example: an employee sent to another job after hours who is required to return to the employer’s premises is working the whole time. If he goes home from the last job instead, the drive home is home-to-work travel and is not counted.

The emergency call-out

Section 785.36: if an employee who has gone home for the day is called out at night to travel a substantial distance to do an emergency job for one of your customers, all the time spent on that travel is working time. For a plumbing, heating or water-damage company running an on-call rotation, that covers the 2 a.m. drive across the county to a burst pipe.

A one-day job out of town

When an employee who normally works locally is sent to another city for a day and comes home the same day, the travel there and back is work time, except that you may leave out the time he would normally spend commuting, and the usual meal time (785.37; Fact Sheet #22).

Overnight trips

Travel that keeps an employee away from home overnight is work time when it cuts across his normal working hours, and that includes the same hours on days he would not normally work, such as a Saturday (785.39). As an enforcement policy, the department does not count time spent outside normal working hours as a passenger on a plane, train, boat, bus or car. But the person driving is working, and so is a helper required to ride along, except during real meal breaks or when allowed to sleep in adequate facilities you provide (785.41).

Why it matters: the drive pushes the week past 40

Drive time is not just paid at the straight rate. It counts toward the 40 hours, and hours over 40 in a workweek must be paid at no less than one and one-half times the regular rate (Fact Sheet #23). Say a painting crew member earning $22 an hour has this day, five days a week:

Paying for site time only would be 37.5 hours, or $825.00. The week the rules count is 47 hours 55 minutes at $22 ($1,054.17), plus half the rate again, $11, on the 7 hours 55 minutes over 40 ($87.08): $1,141.25. That is $316.25 a week for one worker, and the gap is in the drive and the shop time, not the painting.

If your crew is on a day rate rather than an hourly wage, the same hours still count toward 40, and the overtime math changes shape: see Overtime on a Day Rate or a Piece Rate.

California counts more

States can be stricter than the federal rules, and California is. Its Labor Commissioner’s enforcement manual (section 46.1.1) says that if an employee is required to report to the employer’s premises before going to an off-site job, all of the time from reporting until he is released to go straight home is hours worked. It also says the state does not draw the federal distinctions between travel inside and outside normal hours, or between overnight and one-day trips: required travel to an out-of-town assignment is paid, whether driving or riding as a passenger. The manual also describes a federal appeals case, Rutti v. Lojack, that applied California law to an employee required to drive a company vehicle from home to job sites and back under restrictions (no personal errands, no passengers, straight there and back); in the manual’s words, that time was deemed compensable because of the employer’s control over it.

For construction occupations, California’s Wage Order 16 adds a rule in its own words: all employer-mandated travel after the first location where the employee’s presence is required must be paid at the regular rate, or the overtime rate where it applies. The manual allows a separate pay rate for travel time, not below minimum wage, if the employee is told before the travel begins; for a construction crew, though, the Wage Order 16 rule above still sets the rate for travel after the first required location.

Other states may have rules of their own. Before you set a travel policy, read your state labor department’s page on hours worked.

Write the policy down, and keep the times

• Decide where the day starts. If the crew must come to the shop, the day starts at the shop. If you want the day to start at the site, the crew has to be able to go straight there.
• Put any company-truck commute in a written agreement, and keep it inside your normal commuting area.
• Record the real times. Federal rules require records of the hours worked each workday and the total each workweek (29 CFR 516.2). Shop arrival, departure and the return belong on the time sheet.
• Price the drive into the job. Paid travel is a labor cost like any other, and a job across the county carries more of it.

General information, not legal or tax advice. Rules change and vary by state; check with the agency named above or a professional for your situation.