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Ask the Lawyer: About When the Clock Starts for Employees
Q. My employees have a special routine when we begin a new job. They are required to meet at the main office and then head out to the job site together to begin working. Sometimes new jobs are just minutes away. Other times, the job can be an hour or more from the office.
My question is this: When should I start the clock for paying my employees — when we meet at the main office or when they arrive at the job site and start working?
Also, if they don’t meet at the office and the job is on the other side of town, do I have to pay for their commuting time?
A. The short answer is that the clock starts for your employees when they are required to be at the office. As for regularly commuting to the job site from home, that is generally considered to be on their time. Of course, nothing is ever cut-and-dry.
First, under the provisions of the Fair Labor Standards Act (FLSA), employees must be paid for all hours that they work. The exception to this rule is the Portal-to-Portal amendment, which identified certain employee activities that are not compensable.
These exceptions include:
- Travel time associated with commuting from home to and from your employees’ actual place of performance — the job site.
- Activities immediately before and after the “official” work day that are of slight consequence or not integral to your employees’ job, such as crew members gathering before work on a job site for coffee.
However, even with the amendment, there are still questions about when commuting ends, when compensable work-related travel begins and whether or not pre- and post-activities are an integral and indispensable part of the job.
Two recent cases by the Sixth and Eleventh Circuits of the U.S. Court of Appeals attempt to clear up some of these occasionally puzzling issues.
The Clock Starts When Employees Report for Work
According to Burton v. Hillsborough County, Florida, which was decided on May 18, if you require employees to go to a certain location to pick up a company vehicle for travel to a job site, and after work to return the vehicle to that location, the "commute" in the company vehicle to and from the job site is on the employer’s dime.
In this case, Hillsborough county workers were required to report each day to the county's secure parking lot, pick up a county vehicle and drive to a remote work site, returning the vehicle to the lot at the end of the day. For some of the workers, the commute took several hours each day.
The county argued that the workers had agreed not to be compensated for travel between the parking lot and their remote work sites, and that the use of a company vehicle did not make commute time compensable.
The court ruled in favor of the employees, holding that its non-compensation agreement was unenforceable. Because the employees had no choice but to report to the county's secure lot at the start and finish of each day, because the travel time between the lot and the job site was significant, and because the county derived significant benefit from storing the vehicles at the secure lot — protecting them from theft and vandalism ― the clock started when the employees reported to the parking lot to pick up the vehicles and ended when they dropped them off at the end of the day.
‘Shop Time’ Also Means Pay Time
In Chao v. Akron Insulation and Supply, Inc., a case decided earlier this summer, employees were required to report to the main office and wait for an assignment to an off-site job location. The work day officially started at 8:00 a.m., but the employees were required to arrive an hour earlier to load equipment on trucks for travel to the job site, and to await job assignments. During that hour, they also had time to drink coffee and socialize.
The court held that this hour was considered "shop time" and that the extra hour was indispensable to the workers’ principal activities and was therefore compensable. Even if there was no actual work to be done, the employer was required to pay the employees if they were required to report before the official start of the work day for the employer's benefit.
For more information about this compensation requirement, e-mail David Crump at NAHB, or call him at 800-368-5242 x8491.
If you have questions for Ask the Lawyer, click here.
There is no guarantee that your question will be answered in this format, so if you have a particular legal concern that requires immediate attention, contact the NAHB Legal Research Service at 800-368-5242 x8491.
"Ask the Lawyer" is a service of the NAHB Legal Action Committee and NAHB Building Products Issues Committee. The information provided is intended to familiarize you with the law in this area. It is not intended to be an exhaustive presentation of legal information on this particular subject, and in no way constitutes an opinion of law. Your own attorney must review this information to determine how it may apply to your particular situation.
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