In their recent opinion letter, FLSA2020-16, the Department of Labor (DOL) examined three scenarios regarding travel and compensation for nonexempt foreman and laborers in the construction industry. The scenarios were:
Scenario One: 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. The company policy is 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.”
Scenario Two: Remote Job Sites.
The job site is between 1-1⁄2 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 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.”
Scenario Three: 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 held that in all three scenarios, the foreman’s time is compensable when traveling from the principal place of business to the job site.
In scenario one, the laborers time is not compensable. They are volunteering to ride along with the foreman, it is therefore regular commute time, which is not compensable.
The DOL found that the laborers time is compensable in scenario two, regardless if they drove their personal vehicle or not to start and end the job. This is only the case if the travel time was done during the normal work hours, regardless if it is on a non-normal workday.
Scenario three is largely treated the same as scenario two for the laborers. However, if the laborer chose to drive back and forth each day to the remote job site, the time would not be compensable.
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