The Fair Labor Standards Act contains complex rules for determining whether non-exempt employee travel is compensable working time. In most circumstances, time spent commuting to and from work is not considered FLSA working time, but this assumption changes if the employee travels for an overnight stay. A new decision from the Seventh Circuit Court of Appeals confirms that the employer must pay portions of commuting time if the employee travels to and from a worksite that involves an overnight stay.

In Walters v. Professional Labor Group LLC, the employer sent skilled tradespersons to construction worksites for multiple day assignments. The plaintiffs filed a collective action alleging that they were not paid for travel from their homes to the worksites, and for return travel home at the end of the assignments. The employer responded that this travel was ordinary commuting time not compensable under the FLSA.

The Seventh Circuit agreed with the plaintiffs, finding that the FLSA regulation exempting commutes from the definition of compensable working time does not apply if the travel involves an overnight stay. If this travel includes time during the employee’s normal working day, that time must be recorded and paid. Time spent traveling to and from home outside of those normal working hours would not be considered compensable working time.

Some employers schedule travel time for non-exempt employees outside of the ordinary workday to avoid having to pay for this time. Unless the employee leaves and returns home on the same day, travel during working time must be considered compensable working time. These FLSA travel rules are complex, and employers should carefully review their specific circumstances before determining their pay obligations.

For more information, please contact me or your regular Parker Poe contact. You can also subscribe to our latest alerts and insights here.