On November 3rd, the Department of Labor (DOL) issued an opinion letter regarding compensation for travel time of non-exempt foremen and laborers in the construction field under the Portal-to-Portal Act. The DOL outline three scenarios and its guidance for each. Here’s a brief summary for you to consider as you decide if changes to your own policies are required:

Scenario One: Local job sites entails a job site that is close to or within the same city of the employer’s principal place of business. Laborers can choose to drive themselves directly to the job site or drive to the principal place of business, and then ride with the foreman to the job site in a company vehicle. In this situation, the DOL deems the laborers’ travel time as a “normal commute” between home and work, and therefore, not compensable, regardless of which option they choose.

Scenario Two: Remote job sites, assumes the job site is between 1 ½ and 4 hours away from the employer’s place of business. In this scenario, assume the employer provides hotel accommodations for all employees working away from the employer’s principal place of business and gives them a per-diem meal stipend. Once workers have arrived at the hotel, their travel time from the hotel the job site is deemed “normal” home to work travel, and therefore it is not compensable. However, time getting to and from the hotel or the site at the start and end of the project may be compensable if the laborers’ travel time cuts across their normal work hours and depending on whether they drive themselves or are passengers. If the worker drives herself and the time cuts across normal working hours, the time is compensable, even if it’s on a day she’s not usually scheduled to work. If the company offers her a lift in a company vehicle but she instead opts to drive her own car, the company can either (a) pay her for the actual time she spends driving there, or (b) pay her for the amount of time she would have earned while riding as a passenger in a company vehicle. Again, that’s not a daily thing, just at the start and end of travel to the project area. In my view, this is a good sign for employers that the DOL, at least under present leadership, recognizes that employers should have some flexibility in determining how to control their cost exposure for employee travel time.

Scenario Three – remote job site, but the laborer commutes. Here’s your employee who wants to sleep in his own bed each night, and is willing to make the long drive even though the company would provide a hotel and perhaps a lift as described above. In that case, the driving time, which is the employee’s choice, is not compensable.

Take-Aways and Caveats:

This is just an opinion letter. It is not a binding regulation nor is it an indicator that the DOL would rule a certain way in any particular scenario or litigation. It is based on certain assumptions that you’ll want to note, and nothing binds the DOL in the future, especially given the likelihood that it will be under new leadership starting in January. These scenarios also assume that the foremen in each situation are to be compensated for travel time, not because of status, but because the scenarios presume that the foremen is required to obtain a company vehicle and bring it to and from the job site each day as an “integral and indispensable business function.”

Nothing in this opinion letter alters the general principal that non-exempt employees are responsible for their own time getting to the place of work. However, when laborers are at that place of work can sometimes be tough to determine. Hopefully, these scenarios help our construction clients make the right call. If you need help or have questions, give me a call.