FLSA2020-16 — Addressing compensability of employee travel time in three hypothetical scenarios involving construction sites located away from the employer's principal place of business

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210
FLSA2020-16
November 3, 20
20
Dear Name*:
This letter responds to your request for an opinion on whether the travel time of non-exempt
foremen and laborers is compensable worktime under the Fair Labor Standards Act (FLSA) in
three different scenarios. This opinion is based exclusively on the facts you have presented.
You represent that you do not seek this opinion for any party that the Wage and Hour Division
(WHD) is currently investigating or for use in any litigation that commenced before your
request.
BACKGROUND
You state that a construction company that has job sites in various locations employs foremen
and laborers, all of whom are non-exempt under the FLSA. For safety and security reasons, the
company keeps its trucks at its principal place of business. In each scenario, you explain that
foremen are required to travel to the employer’s place of business to retrieve a company truck;
drive the truck to the job site, where it is used to transport tools and materials around the job site;
and return the truck to the employer’s place of business to secure it.
A.Scenario One: Local job sites.
The job site is local; that is, close to or within the same city as the employer’s principal place 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. You state that
laborers may choose to “drive directly to the job site” or “drive to the principal place of business
and then ride to the job site with the foremen[.]”
B.Scenario Two: Remote job sites.
The job site is between 1-½ and 4 hours’ travel time from the employer’s principal place of
business. The employer pays for hotel accommodations for all employees who work at the job
site and pays to those employees a per-diem meal stipend. 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. Laborers “are to drive their personal vehicles” to and
from the remote job site at the beginning and end of the job, but some “want to drive their
personal vehicles to the employer’s principal place of business and ride to and from the job site
with the foremen[.]”

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C. Scenario Three: Employees commute to remote job site.
The facts are the same as in Scenario Two, but the laborers choose to travel between the remote
job site and their homes each day rather than stay at the hotel.
GENERAL LEGAL PRINCIPLES
An employee is working and must be compensated when suffered or permitted to work. See 29
U.S.C. § 203(g); 29 C.F.R. § 785.11. An employee’s workday ends when the “employee is
completely relieved from duty [for] long enough to enable him to use the time effectively for his
own purposes[.]” 29 C.F.R. § 785.16. Under the Portal-to-Portal Act, an employee’s time
“walking, riding, or traveling to and from the actual place of performance of the [employee’s]
principal activity or activities” is generally not compensable worktime when the walking, riding,
or traveling occur before the employee starts or after the employee stops his principal activity or
activities. 29 U.S.C. § 254(a). 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.”
29 C.F.R. § 785.35; see id. § 790.7(c).
On the other hand, WHD has long interpreted the Portal-to-Portal Act to require that “travel from
[a] designated place to the work place is part of the day’s work, and must be counted as hours
worked” 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[.]” 29 C.F.R. § 785.38. But a
preliminary or postliminary activity is not compensable under the Portal-to-Portal Act simply
because it benefits the employer and the employer requires it. Instead, as the Supreme Court
recently clarified in Integrity Staffing Solutions, Inc. v. Busk, the Portal-to-Portal Act requires
that the activity 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.” 135 S. Ct. 513, 518–19 (2014).
Travel to another city on a special one-day assignment is compensable worktime from which the
employer may deduct the amount of time (either the actual time or an average commute time)
that the employees would have used to travel to their usual work site. 29 C.F.R. § 785.37.
Travel that keeps an employee away from home overnight is travel away from home. Id.
§ 785.39. Whether that travel is compensable depends on when the employee travels and how
the employee travels. Travel away from home that cuts across an employee’s normal working
hours is compensable; the travel is simply substituting for other duties. Id. This is the case even
if the employee is traveling on what would normally be a nonwork day. Id. As an enforcement
policy, WHD does not consider “travel away from home outside of regular working hours as a
passenger” to be compensable. Id. If an employer offers public transportation to an employee
but the employee chooses to drive his own vehicle, the employer may count as hours worked

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either the amount of time the employee spent driving or the amount of time the employer would
have had to count if the employee had used the offered transportation. 29 C.F.R. § 785.40.
OPINION
A. Foremen.
The foremen’s travel time between the employer’s principal place of business and the job sites is
compensable in each scenario.
A foreman’s trip from home to the employer’s place of business is ordinary home-to-work
commuting and is not compensable. 29 U.S.C. § 254(a); 29 C.F.R. § 785.35. WHD has long
interpreted the Portal-to-Portal Act to include as compensable all time spent traveling from a
central location to a job site when the employee is directed to first report to the central location.
29 C.F.R. § 785.38; see WHD Opinion Letter FLSA-727 (Nov. 15, 1990);
1
WHD Opinion
Letter FLSA-980 (July 9, 1990).
2
But being required to report to the central location by itself
cannot make travel from that location to the job site compensable. Instead, as the Supreme Court
clarified in Busk, travel time that begins or ends a work day is compensable if it is “integral and
indispensable to the principal activities that [an employee] is employed to perform.” 135 S. Ct.
at 519.
You have indicated that the job sites are large and that the company needs the trucks to transport
tools and materials around those sites. You have also indicated that, for safety and security, the
employer requires that the company trucks be secured at the employer’s principal place of
business when not at a job site. For these reasons, the company requires the foremen to retrieve
the truck from the principal place of business, drive the truck to the job site, and return the truck
when done at the job site. We thus conclude that the foremen’s retrieving the truck at the
beginning of the work day, driving it to the job sites, and returning the truck at the end of the
work day are integral and indispensable to the principal activities they are employed to perform,
making the travel time between the employer’s place of business and the job site compensable
worktime. This is true whether the job site is local, as in Scenario One, or remote, as in Scenario
Two.
B. Laborers.
1. Scenario One: Local job sites.
The laborers’ travel time to and from a local job site is normal commuting between home and
work, which is not compensable. 29 U.S.C. § 254(a); 29 C.F.R. § 785.35. Their choice to meet
at the employer’s place of business and from there ride with the foreman in the company truck as

1
Available at https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/legacy/ol_1990-11-15_a.pdf.
2
Available at https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/legacy/ol_1970-07-09_a1.pdf.

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part of their travel does not transform their commute into compensable worktime. See, e.g.,
WHD Opinion Letter FLSA-980 (July 9, 1990).
2. Scenario Two: Remote job sites.
In this scenario, the laborers are away from home overnight. The laborers’ travel from their
hotel to the job site is normal “home” to work travel, which is not compensable. 29 U.S.C.
§ 254(a); 29 C.F.R. §§ 785.35, 790.7(c); WHD Opinion Letter FLSA2018-18 (Apr. 12, 2018).
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The laborers’ travel to and from the remote location at the beginning and end of the job, on the
other hand, may or may not be compensable.
a. Laborers who drive.
You state in your letter that the laborers “are to drive their personal vehicles” to the remote job
site at the beginning of the job and home at the end of the job. We assume that the actual
requirement is that laborers be at the job site to perform their duties and that “drive their personal
vehicles” is a description of how the laborers get to the remote job site rather than a command
that they travel in a particular way. If their travel cuts across their normal work hours, even if
they are traveling on what would otherwise be a nonwork day, the laborers’ time is compensable.
29 C.F.R. § 785.39.
b. Laborers who are passengers.
Whether a passenger’s travel time is compensable depends on when the laborer travels. If the
laborers are traveling to the remote job site as passengers outside of their normal working hours,
WHD would not consider their time to be compensable. 29 C.F.R. § 785.39. If the laborers are
traveling to the remote job site during their normal working hours, even if not on normal
workdays, their time would be compensable. Id.
You state in your letter that some laborers “want to drive their personal vehicles to the
employer’s principal place of business and ride to and from the [remote] job site with the
foremen[.]” I f the employer offers to transport laborers to the remote job sites in the company
trucks but a laborer chooses to drive his own vehicle, the employer would have the option to
count as compensable worktime either (1) the actual amount of compensable time the laborer
accrues in driving to the remote job site or (2) the amount of time that would have accrued
during travel in the truck. Our interpretive regulation addresses only offers of public
transportation to employees who choose to drive themselves. 29 C.F.R. § 785.40. However, as
our travel-time regulations themselves note, they do not purport to address every conceivable
situation in which an employee must travel for work. Rather, they “discuss[]” the “principles
which apply in determining whether or not time spent in travel is working time,” Id. § 785.33, as
part of the regulations’ broader aim of explaining how hours-worked principles apply under
frequently occurring situations, see id. §§ 785.1, .10. Applying those principles to the facts you

3
Available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2018_04_12_01_FLSA.pdf.

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have described, we conclude that the employer’s choice of how much time to count as
compensable worktime as described above is equally applicable to other offers of transportation,
such as where employees choose to travel as passengers in employer-offered transportation.
The FLSA is not an inflexible bar that places employer and employee in opposition; it recognizes
that employment is a relationship both parties enter into for their mutual benefit. See, e.g.,
Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424–25 (1945) (parties are free
to agree to wages and work hours, including overtime to be worked, at any time, as long as the
FLSA’s minimum-wage and overtime requirements are satisfied). “And that is as should be
expected, because employees’ rights ... are not always separate from and at odds with their
employers’ interests.” Sec’y of Labor v. Bristol Excavating, Inc., 935 F.3d 122, 135 (3d Cir.
2019). Thus, our travel-time regulations do not rigidly demand that all time spent on overnight
travel be considered compensable worktime, nor do they treat all days involving overnight travel
as typical workdays. This would leave employers with a single method of controlling travel-time
costs: demanding that employees travel only on employer-determined schedules, lest they choose
to travel on schedules that would turn noncompensable time into compensable time. Rather,
WHD’s regulations allow an employer to control those travel costs by offering public
transportation to a remote job site on its preferred schedule. Whether employees accept the offer
or decline it in favor of driving themselves, the employer has controlled its costs: The offer
allows the employer to count as compensable time either the time the employees’ travel actually
takes or the time that would have been considered compensable if the employees had accepted
the offered transportation. 29 C.F.R. § 785.40.
These principles do not change if an employer offers private instead of public transportation, or
if the employees ask to travel as passengers rather than drive or otherwise transport themselves.
We thus conclude that if the employer offers the laborers the opportunity to ride to the remote
worksite with the foremen in the company vehicles, the employer may choose to count as hours
worked either (a) the time that accrues during a trip in the company trucks or (b) the time the
laborers actually take to travel to the remote worksite.
3. Scenario Three: Remote job sites, but laborers commute.
In this scenario, laborers choose to drive between the remote job site and their homes each day.
The laborers’ travel to and from the job site at the beginning and end of the job would be treated
as in Scenario Two. The laborers’ intervening drives home and back to the remote job site
would not be compensable.
Once the workday ends, the laborers are presumably “completely relieved from duty” for long
enough “to use the time effectively for [their] own purposes”; that time is not hours worked. 29

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C.F.R. § 785.16(a).
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The laborers’ own purposes might be watching TV, reading, playing cards,
working out, or calling or video chatting with friends and relatives. If their purpose is travel to
their homes, however, that travel does not transform the time used at the laborers’ personal
disposal into hours worked.
CONCLUSION
We conclude that the foremen’s travel time is compensable in every scenario; that the laborers’
travel time is not compensable in Scenario One; that the laborers’ travel time may be
compensable in Scenario Two; and that the laborers’ intervening travel time in Scenario Three—
the drives from the remote job site to home and back between the beginning and end of the job—
is not compensable.
This letter is an official interpretation of the governing statutes and regulations by the
Administrator of the WHD for purposes of the Portal-to-Portal Act. See 29 U.S.C. § 259. This
interpretation may be relied upon in accordance with section 10 of the Portal-to-Portal Act,
notwithstanding that after any such act or omission in the course of such reliance, the
interpretation is “modified or rescinded or is determined by judicial authority to be invalid or of
no legal effect.” Id. We trust that this letter responds to your inquiry.
Sincerely,
Cheryl M. Stanton
Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C.
§ 552(b).
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This is the case even if the laborer’s relief from duty cuts across what would normally be the laborer’s work hours:
If the employer has “definitely told [the laborer] in advance that he may leave the job and that he will not have to
commence work until a definitely specified hour has arrived,” his actual workday has ended, and his time is his to
do with as he pleases—not worktime. 29 C.F.R. § 785.16(a). See also WHD Opinion Letter FLSA2004-15NA
(Sept. 21, 2004), available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/
2004_09_21_15FLSA_NA_travel.pdf.