Introduction to the Fair Labor Standards Act (FLSA)

3. O VERNIGHT T RAVEL U NDER THE FLSA Travel away from home is work time when it occurs during the employee’s workday. 81 Thus travel away from home that occurs during the employee’s regular work day and normal work hours is compensable. Further, travel on days an employee is not normally scheduled to work but during his or her normal work hours is also counted as hours worked. 82 However, regularly- scheduled unpaid meal break time is not counted as hours worked when traveling. 83 The DOL does not consider as work time any time spent in travel away from home outside of regular working hours, when the employee is a passenger on an airplane, train, boat, bus or automobile. 84 When the employee is offered public transportation, but requests permission to use his or her private car instead, employers may count as hours worked the lesser of either (1) the time spent driving the car or (2) the time it would have taken during working hours if the employee had used public transportation. 85 Of course, when an employee works while traveling, such time is counted toward hours worked regardless of whether the employee traveled by public transportation or automobile. 86 Also, other than bona fide meal or sleep periods, an employee who drives a truck, bus, automobile, boat or airplane for a living is considered working while riding. 87 4. O VERNIGHT T RAVEL U NDER C ALIFORNIA LAW Pursuant to California law, if travel involves an overnight stay, or is part of an out-of-town one- day assignment, any time the employee spends traveling to and from the training, no matter the time of day, constitutes compensable hours worked. This includes time spent traveling as a passenger. 88 Furthermore, depending on the level of the employer’s control over how an employee spends his or her time while travelling for work, all time spent during overnight travel for work may be compensable, even time spent taking a meal break, sleeping, or engaging in purely personal pursuits. 89

LCW Practice Advisor

Generally speaking, public agencies that are not charter cities or counties must follow California law on overnight travel time. To date, courts have not construed California law on travel time to apply to charter cities or counties. However, a recent appellate court decision, Marquez v. City of Long Beach , which held that California minimum wage applies to a charter city, may indicate that all public agencies – including charter cities and counties – need to follow California law on overnight travel time. 90

Introduction to the Fair Labor Standards Act (FLSA) ©2020 (s) Liebert Cassidy Whitmore 20