Question:

I work for an employer in the construction industry and do not report to a fixed office location. Instead, I work at different constructions sites at varying distances from my home. Does my employer have to pay me for the time it takes me to drive to the different construction sites?

Answer:

Although an employee is generally not entitled to compensation for the time spent commuting to and from work, known as “travel time,” there are some exceptions. The answer depends on whether the travel time constitutes actual hours worked. Under California law, the term “hours worked” is defined as the time during which an employee is “suffered or permitted to work” and is subject to the employer’s control.

The Division of Labor Standards Enforcement (“DLSE”) has recognized that certain employees in certain occupations do not regularly report to one fixed work site, such as an office, due to the nature of the industry they work in, or due to their occupation. One example is the construction industry where an employer offers some individuals employment only at building sites, and they never go to the employer’s office. Another example is the entertainment industry in which the employees’ work site changes from one job to another although they remain working for the same employer. These employees have to commute different distances to get to the different work sites. However, the DLSE has reasoned that since the employees in these examples have a reasonable expectation that they will be routinely required to travel “reasonable distances” to job sites on a daily basis, their commute is not considered work time for which they must be compensated.

Nevertheless, there may be occasions when an employee who is routinely required to travel to job sites is required to travel to a distant worksite. For example, a construction employer may accept construction contracts in distant areas. In such an instance, if the employer requires the employee to travel to that distant work site, the employee is entitled to compensation for that travel time. In determining whether the travel is reasonable or distant, an employer should look at the time it normally takes the employee to drive to a worksite. Although the DLSE provides no guidance on what is reasonable and what is distant, if the difference between the normal commute and the new one is excessive, the travel time should be paid.

Employees may also be entitled to compensation for the time they spend traveling to and from work if an employer requires them to meet at a designated place at a designated time to take employer provided transportation to the work site, prohibiting them from using their own transportation. Under those circumstances, the time spent waiting for and traveling to and from the work site on the employer provided transportation is considered hours worked for which compensation must be paid. However, if the employer is just offering free transportation, but the employees are free to drive their own vehicles, those employees who choose to take the free transportation are not considered to be under the employer’s control. As such, the employer is not required to pay them for the time spent on the employer provided transportation since they are free to drive to work themselves if they so choose.

If an employee has a specific assigned workplace to which he or she reports everyday but is required to go to another location during the course of the workday, the employer must compensate the employee for that travel time. For example, a contractor employs someone to build items at the contractor’s shop, but requires the employee to then install the items at work sites. In this instance, the employee’s regular workplace is the contractor’s shop, and the employee is entitled to compensation for the travel time incurred going to the work sites.

When the time spent commuting is compensable, the employee is not entitled to compensation for the travel time for the entire commute. The travel time for which the employee must be paid is the difference between the time it normally takes the employee to commute to work, and the time it takes the employee to travel from home to the distant work site. If the total hours worked, including compensable travel time, exceed eight hours in one workday or 40 hours in one workweek, overtime must be paid. The employer can establish a different rate of pay for travel time as long as the rate is not less than the minimum wage, and as long as the employee has been informed of the different rate before the travel occurs. Employers must keep in mind that if a different rate of pay is established for travel time, that rate must be taken into account in calculating overtime pay.
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