Exempt employees are paid on a salary basis, meaning they are paid the same amount each week regardless of the hours that they work. Any time an exempt employee spends traveling for work will be compensated through their regular weekly salary; no additional compensation is owed for travel time.

Tracking Travel Time

Accurate record keeping is imperative when nonexempt employees travel for work. You should ensure that nonexempt employees accurately record all their travel time so they can be properly paid. When employees travel to a different time zone, it's best practice to require them to track all hours based on California time to avoid payroll errors.

The following examples demonstrate what would be considered paid travel time when nonexempt employees are required to travel in the course of conducting their work:

• If an employee reports to the regular workplace and is then required to travel to another site to work for the day, the time spent traveling to the assigned workplace is paid travel time.1
• If an employee is required to report to a worksite other than the regular site and goes directly to that site without first going to the regular site, all time spent traveling to the worksite in excess of the employee's normal commute to and from the regular site is paid travel time.2
• If an employee is required to travel to a work function, meeting, conference, training or other destination for work purposes, the time spent traveling, subtracting their usual commute time, from the time they leave their home until they reach their destination or until they no longer perform work (e.g., they have checked into a hotel and are free to do what they choose) is paid travel time.

When nonexempt employees travel for work, they need to be paid for those hours, including overtime. For example, a nonexempt employee who works in Sacramento is required to attend a conference in Los Angeles. The employee works their regular eight-hour shift at their workplace in Sacramento, then goes to the airport to take a flight to Los Angeles, where they stay the night in a hotel. The next day, they attend the conference for six hours, then go to the airport to travel back to Sacramento. Under these circumstances, the employee must be paid for:

• Their eight-hour workday in Sacramento;
• The time they spend traveling from their workplace in Sacramento to the hotel in Los Angeles, including the time spent waiting at the airport and on the plane - all of which will be overtime if the employee already worked eight hours that workday;
• The six hours they spend attending the conference the next day; and
• The time they spend traveling from Los Angeles back to the airport in Sacramento if the travel time from the airport to home is the same or less than the employee's normal commute time from work to home. If the travel from the airport in Sacramento to the employee's home is more than the employee's normal work to home commute, the employee must be paid for any excess time. This time will include overtime hours once the employee exceeds eight hours of work and travel time for the workday.

Nonexempt employees must also take meal and rest breaks when traveling. For more information, see Meal and Rest Break.

Paying Employees for Travel Time

Because traveling does not require the employee to employ their skills, employers can generally pay for travel time at a rate of pay less than the employee's normal rate of pay, but no less than the applicable minimum wage. Wage Order 16 deviates from the general rule, however, requiring travel time to be paid at the employee's regular rate of pay or their overtime rate, if applicable.

If you wish to pay employees for travel time at a rate that is less than the employees' normal rate of pay, that rate should be communicated to all employees in advance, preferably as part of your employee handbook. The travel pay rate must be noted on the Wage and Employment Notice, which is legally required for each nonexempt employee.

• Wage and Employment Notice to Employees
• Wage and Employment Notice to Employees - Spanish

Travel time is counted as work time and overtime pay rules apply. For more information on calculating the overtime rate when two or more rates of pay apply, see Calculating Overtime.

Employers covered by Wage Order 16 (Certain On-Site Occupations in the Construction, Drilling, Logging and Mining Industries) must pay employees their regular rate of pay or the applicable overtime rate for all employer-mandated travel that occurs after the employees report to the first required location of the workday.

Travel Time and Expense Reimbursement

The obligation to pay nonexempt employees for all hours spent traveling for work is separate from the obligation to reimburse all employees for expenses incurred in performing their jobs. When all employees travel for work, they must be reimbursed for expenses they incur, including mileage if using their own vehicle, airfare, hotel, meals and other travel-related expenses. For more information, see Expense Reimbursemen t.

Even though exempt employees are not separately compensated for travel time (it's covered by their weekly salary), they still must be reimbursed for travel-related expenses.

Commute Time

Employers don't typically have to pay employees for time spent commuting to work — that is, the time employees spend getting to and from work each workday. However, if an employer requires an employee to perform work during a commute, the time spent commuting may be considered hours worked.

In addition, if an employer exerts control over an employee during their commute time, the commute may be considered hours worked and need to be paid.

The California Supreme Court recently addressed the level of control necessary to make commute time compensable when it examined whether time employees spent driving on the employer's premises in a personal vehicle between a security gate and employee parking lots, while subject to certain rules from the employer, must be paid as “hours worked.” 3

In that case, the employees entered the property in their personal vehicles at a security gate, then drove an additional 10-15 minutes down a road to a parking lot. During that drive, the employees had to follow certain rules imposed by the employer, such as limits on speed and noise. The California Supreme Court concluded that the time spent driving between the gate and parking lot was not “hours worked” because although the employee was subject to certain rules while driving, the employer didn't exercise sufficient control over the employees for that time to be deemed “hours worked.”

If an employer imposes too much control over an employee's commute, then the time may need to be paid as travel time.

For example, commute time can become compensable travel time if employers impose restrictions on how employees commute in employer-provided vehicles. In one case, the time employees spent driving a company vehicle to and from work was found to be compensable travel time — and not unpaid commute time - because of the level of control the employer exercised over the employees' commute.4 The employer required the use of the company vehicle for commuting and imposed restrictions on employees during the commute, including: not allowing employees to use the company vehicle for personal errands; only allowing employees to use the company vehicle to drive to and from jobs; prohibiting employees from transporting any passengers; and requiring employees have their cell phones turned on at all times but not use them while driving, except for company business. As a result, the employees were under the employer's control from the time they left home to drive in the company vehicle to the first job until they arrived home at the end of the day.

Commute time may also have to be paid if an employer is exercising control over how the employee is using their own vehicle to commute. For example, the time may have to be paid if the employer requires that the employee transport such a volume of tools and equipment in their personal vehicle that it restricts the employee's ability to use their vehicle freely during their commute.5

If the use of an employer-provided vehicle is not mandatory, the time spent commuting in the vehicle can be unpaid:

• An employee was given the option to either use his own vehicle to commute to one of the employer's facilities and retrieve a company vehicle or to keep a company vehicle at home each night; the employee chose to keep the company vehicle at home and start his shift from home. The employee's commute time in the company vehicle was not compensable, even though the employee was subject to the employer's control pursuant to its vehicle policy, because the employer did not require that the employee use the company vehicle to start his shift from home.6
• An employer had a voluntary program that allowed employees to take a company vehicle home and use it to commute to and from work. Because the employees' use of the company vehicles for commuting was voluntary, it was not considered “hours worked” and therefore didn't need to be paid.7

• Employers that provide company vehicles to hourly employees and/or impose requirements on how employees commute should evaluate the level of control being imposed on employees during their commute time. Employers should consult legal counsel with questions about whether any time would qualify as unpaid commute time or paid travel time.

Employer-Provided Transportation

If employers require employees to use employer-provided transportation to commute to the workplace, that time may need to be paid. In one case, an employer required employees to meet for work each day in certain areas and then the employer transported them, in buses that the employer provided and paid for, to fields where the employees would work. At the end of each day, the employer transported the workers back to the departure points. The employer prohibited employees from using their own transportation to get to and from the fields. The court held that if an employer requires its employees to use employer-provided transportation to get to work and prohibits employees from taking their own transportation, the employees are subject to the control of the employer and the time they spend traveling to and from work on the employer-provided transportation is compensable as hours worked.8

On the other hand, if an employer offers employees the use of optional transportation to the workplace but employees are free to use other forms of transportation, the time the employees spend commuting in employer-provided transportation is not compensable; that's because the use of the employer-provided transportation is not required and the employees are not under the employer's control while using the transportation.9

Travel to Remote Work Sites

The U.S. Department of Labor (DOL) issued an opinion letter that discussed whether an employee is entitled to travel time pay when the employee travels to remote job sites in their own vehicle under the Fair Labor Standards Act.10

The DOL examined two different scenarios. In the first scenario, an employee had the option to drive to the company's headquarters and ride in the company vehicle to the remote job site or use their own personal vehicles to get to the job site. The DOL opined that the employer can count as compensable worktime either the actual amount of time the employee spends driving to the remote job site or the amount of time they would have spent traveling in the company vehicle.

In the second scenario, the employer offered to put the employees in a hotel for the nights between work at a remote job site. Employees had the option to either stay in the hotel or choose to drive back home from the remote site each night. The DOL opined that the intervening trips home and back during the project were not compensable because the employer had relieved the employees of all duty and had no control over whether employees chose to stay at the hotel or commute each day to and from the remote work site.

Travel Time and Telecommuting

In an opinion letter, the U.S. Department of Labor considered whether a nonexempt employee with permission to telecommute part of the day and work in the office for part of the day, while completing personal tasks in between, must be compensated for certain intervening travel time.11

In one example, an employee received permission from the employer to attend a parent-teacher conference in the afternoon and then work from home instead of returning to the office. The DOL opined that the time spent traveling home from the conference is not compensable under the FLSA because it is akin to the commute home at the end of a workday.

In another example, an employee received permission to work from home in the morning and then engaged in personal activities, including going to a doctor's appointment, before traveling to her regular workplace to work the rest of the day. The DOL opined that the time spent traveling for the employee's personal activities and then to the workplace is not compensable under the FLSA.

In both scenarios, the employer was not requiring the employees to travel for work; rather, the employees were traveling for their own purposes during off-duty time or were engaged in normal commuting, which is not compensable.

An employee who normally telecommutes and incurs no commuting costs may be able to successfully argue that their employer must reimburse them for mileage if the employer requires them to report to the company office or other workplace.

• In two additional opinion letters, the DOL considered how the Fair Labor Standards Act (FLSA) applies to nonexempt employees’ commuting time under split-day schedules in which they split their workday between a remote location (e.g., their home) and their normal worksite

In one opinion letter, the DOL analyzed three split-day scenarios in which a nonexempt employee:

1. Begins work at home, then commutes to and works at their normal office, and then commutes to and finishes their shift at home.
2. Works extra hours early in the morning from home and then commutes to work for their regular shift.
3. Uses the city bus to commute to work, is unable to complete work before the last bus leaves for the day and asks for permission to bring the work home and complete it there.

In the examples, the employer provided the split-day schedule option for employee flexibility and doesn’t require the employee to work during the commute. Under these circumstances, the DOL concluded that the midday travel qualifies as ordinary commuting time, which is not compensable because it is an optional choice that primarily benefits the employee.12

In the other opinion letter, the DOL addressed the issue of when pre-shift activities and commuting time may become compensable under the FLSA. In the example, an employer sends their employee client service requests before the employee’s shift starts. The employee takes approximately 15 seconds to accept each page and then calls each client to set up appointments, with each call taking five to 10 minutes. The employer doesn’t pay for this time, even if the employee is already driving to a client location during that time and receives the requests and makes calls while driving.

The DOL concluded that the time spent merely receiving assignments electronically is not compensable — whether performed at home or during the commute — but time spent on the phone with clients and other field employees, however, is compensable because those tasks are required by, and primarily benefit, the employer.13

California employers must keep in mind that the DOL’s opinions reflect the agency’s interpretation and enforcement position with respect to federal law, not California law, which is often more protective of employees. The DOL’s travel time opinions may be helpful guidance to California employers, however, because California law governing commuting and travel time is similar to federal law. Under California law, commuting time is generally noncompensable. As with the FLSA, however, if an employer exercises enough control over the commute, like controlling the mode of transportation or requiring the employee to perform work during that time, the commute may constitute hours worked.

Though there are similarities between federal and state requirements, California courts and the California Labor Commissioner tend to be stricter about what counts as “hours worked” and may be more likely to find travel time compensable when the employer exercises control over the commute, including requiring employees to report to a different location beyond their normal commute, require the use of employer-provided travel or subjecting the employee to certain policies or rules while commuting.

When considering split-day practices and flexible work arrangements, California employers should do so through the lens of California’s strict wage-and-hour laws.

1. 29 CFR sec. 785.38