When In Doubt Pay for Incidental Time Worked

Dear Littler,

We are a nursing services company with employees in various states, some of whom work remotely. Recently, some employees have been asking to be paid for time spent commuting to client sites or into our offices. Others have asked to be compensated for time spent changing into uniforms, or while on call. We are confused about when employees need to be paid for these times. Please help!

— Confused

Dear Confused,

It is confusing! As with many aspects of employment law, the requirement for compensation depends on what is “work time.” For example, Fair Labor Standards Act (FLSA) regulations interpreting the Portal-to-Portal Act provide that regular commuting time at the beginning and end of the workday is not compensable as work time, even when the employee is assigned to a region and commutes to different worksites each day. However, commuting from one worksite to another during a continuous workday is likely to be considered work time. The regulations also provide that work that an employee is required to perform while traveling must be counted as hours worked. For example, if an employee is required to review medical records on the way to work, that time may be compensable. The situation is more complicated when the travel from home to work is for an emergency taking place after normal work hours. The FLSA regulations take “no position” on whether such emergency travel is compensable.

What about on-call time? In determining whether on-call time is compensable, courts focus on the degree to which the employee is free to engage in personal activities while on call. For example, employees who have been required to remain at or within a short distance from the employer’s premises while on call have been considered to be working, while employees who have only been required to leave a phone number where they may be reached have not been considered to be working while on call, as long as the work interruptions are not so frequent that they preclude the employee from effectively using the time for their own purposes.

As to time spent changing into and out of uniforms, the answer depends on a variety of factors, including whether the employee is required to change at work, whether special protective equipment is involved, and whether the uniform is required by law. Under the FLSA, employers are not required to pay workers for activities that are “preliminary or postliminary” to the employee’s principal employment activities (or “integral and indispensable” to those principal activities). Thus, some courts have held that if employees can change into uniforms at home and those uniforms do not serve any specialized function, the time spent changing is not compensable. In addition, 29 U.S.C. § 203(o) provides that time spent “changing clothes” at the beginning or end of each workday is not compensable if excluded under a collective bargaining agreement. But even that exception has been the subject of litigation about the meaning of “changing clothes” in the context of protective gear.

To add to the confusion, state laws may differ from the FLSA and may provide more expansive compensation requirements. For example, under Pennsylvania law, the term “hours worked” includes time during which an employee is required by the employer to be on the employer’s premises. California law includes within its definition of “hours worked” all time that the employee is under the “control” of the employer. State regulations provide that travel time is compensable when the employer requires its employees to meet at a designated place or use the employer’s transportation to and from the work site. In addition, although commuting time to a job site “within reasonable proximity of the employee's regular work site” is not compensable, travel time longer than the employee’s normal commute may be considered compensable time under California law.

For this reason, Confused, whether your employees need to be paid during those periods is a fact-specific inquiry involving, among other things, what exactly they are doing and where exactly they are located. We recommend that you identify all work-related activities that take place before a non-exempt employee clocks in for the day (and all such activities occurring after they clock out) and ask whether the activity is: (a) among the principal activities they are employed to perform; (b) integral and indispensable to the employee’s principal activity; (c) primarily for the benefit of the employer or the employee; and (d) being controlled or directed by the employer. Only then can the compensability of the activity be assessed under the FLSA and applicable state law.