I have stated many times that I am pleased that the USDOL has taken again to issuing Opinion Letters which guide employers in complying with the Fair Labor Standards Act. I am particularly happy that the agency has issued an Opinion Letter dealing with travel time issues in the construction industry, as these issues are always popping up and, more importantly, might pose a “hidden” danger to employers (e.g. class action) if travel time that should be compensated is not. This recent letter deals with the travel time of non-exempt foremen and laborers in three different scenarios.
The entity is a construction company that maintains work sites at a number of locations and it stores its trucks at the principal business location. The (non-exempt, hourly-paid) foremen were required to first go to this primary location to pick up a truck, then drive the truck to a job site, transport tools and materials around the job site and then return the truck to the primary location at the end of the day. The employer seeking the advice posed three scenarios and wanted answers about the foremen and the laborers that also ride in the trucks. Today, I look at the issue of compensable time for the foremen.
In the first scenario, the job site is near or within the same city as the employer’s main site 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. In the second scenario, the job site is between 1-4 hours’ travel time from the employer’s principal place of business. 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. In the third scenario, the facts are identical to the second situation, but the laborers choose to travel between the remote job site and their homes each day rather than stay at the hotel.
Under the FLSA regulations, whether the employee “works at a fixed location or at different job sites,” travel to and from home or a place of lodging at either end of the workday is “ordinary home to work travel which is a normal incident of employment” and “is not worktime.” Conversely, when an 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.” With that said, a preliminary activity such as travel, was not compensable simply because it benefits the employer and the employer requires it. The Opinion Letter referenced the Supreme Court decision in Integrity Staffing Solutions, Inc. v. Busk, for the proposition that the activity must be “integral and indispensable to the principal activities that [the] employee is employed to perform”; that is, the activity must be both “an intrinsic element” of the employee’s principal activities and one that the employee “cannot dispense [with] if he is to perform his principal activities.”
Against those principles, the Opinion Letter concluded that the foreman travel time between the employer’s principal place of business and the job sites was compensable in all three scenarios. The agency noted that being required to report to the central location alone cannot convert travel from that location to the first job site compensable, but had to, under Busk, be “integral and indispensable” to the principal activities performed.
The Opinion Letter recited that the job sites were large and the employer needed the trucks to transport tools and materials around those sites. Further, for safety and security, the trucks needed to be kept at the principal place of business when not in use. Given those business needs, the Company directed the foremen to retrieve the truck from the main location, drive to the job site and return the truck to that main site at day’s end. On that basis, the agency concluded that the work of securing/returning the truck from/to the main employer location was integral and indispensable to the principal activities they are employed to perform, thereby converting the travel time to compensable time.
The Takeaway
I am not thrilled about this conclusion but at least it clarifies the situation of travel time in the construction industry. So, now employers know that they have to pay their foremen for this kind of time. I do believe, however, that this travel time does not have to be paid at the regular rate of the foremen (whether it is a prevailing wage job when they are at the site) but may be paid at the minimum wage because I believe the travel time “work” is qualitatively different from the principal job, thus allowing for a lower rate to be paid.
Better to find out up front, then learn this later, the hard way. ..
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