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NOVA Legal Beat: Overtime for Driving Between Offices?

by ARLnow.com Sponsor October 22, 2014 at 1:40 pm 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My job requires me to do much driving between multiple offices. Should I get paid overtime for this work-related travel?

A. Some employers have this notion in their heads that anything done away from a desk or a work station is not work, and certainly not compensable work. But when employees must be away from their desks or work stations so they can drive between job sites, that travel time under certain circumstances can be compensable under the Fair Labor Standards Act (FLSA).

The FLSA requires employers to pay employees not exempted from the law overtime at a rate of time and a half for any hours exceeding 40 hours per work week. When taking travel time into account, on top of any work performed at locations traveled to and from, employees can exceed this 40-hour threshold.

Federal regulation states that “[t]ime spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.”

The emphasis here is on the phrase “part of his principal activity.” A “principal activity,” the U.S. District Court for the Eastern District of Virginia noted in Epps v. Arise Scaffolding and Equipment, Inc. (2011), “embraces not just the predominant or principal function of an employee but also ‘all activities which are an integral and indispensable part of the principal activities.'” Hence, time spent traveling is compensable if the employee is “required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work,” according to the regulation.

Generally, the time an employee spends travelling from home to a work site or vice-versa is not compensable. You’ll note that the regulation does limit the definition of travel time to “travel from job site to job site.” Further, under an exemption to the FLSA’s travel time requirement created under the Portal-to-Portal Pay Act, “an employer need not compensate an employee for time spent traveling to the place of performance of the principal activity or for activities which are preliminary or postliminary to the principal activity,” the Eastern District noted in Harder v. ARCO Welding, Inc. (2013).

Examples of travel not covered by the FLSA identified by the court in Epps include “bridge workers’ boat ride to job site” and “well drilling crews’ mandatory ride to well site.” In these situations, the travel precedes the start of the principal activity. But any travel that occurs “after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is…covered by the FLSA,” the court added.

Employees who believe they have been wrongly denied overtime for work-related travel should consult with an experienced employment law attorney, who can prepare for them an FLSA lawsuit. Employers, too, should consult with an experienced employment law attorney, who could help them determine whether an employee’s travel time is compensable.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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