Q&A: Can employers implement an average commute deduction?

Can an employer in New York implement an average commute policy that establishes a default average commute distance of thirty (30) miles and a non-compensable commute time of 45 minutes for team members with irregular commute distances?

FLSA travel time rules and New York context

There are requirements under the Fair Labor Standards Act (FLSA) regarding when travel time is compensable. Under the FLSA, the key to identifying when compensation for travel is necessary is determining whether the employees are engaged in travel as part of the employer’s principal activity or for the convenience of the employer. Whether time spent traveling is paid work time for nonexempt employees depends on the type of travel involved. Travel time that is work time is subject to both the FLSA minimum wage and overtime pay requirements.

The Portal-to-Portal Act provides that traveling to and from where work is performed at the beginning and end of the workday is not work time (See 29 USC 251 to 262). Other travel time associated with an individual’s performance of their job is paid work time. The regulations state specifically that:

“An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.” See 29 C.F.R. §785.35.

Travel between job sites under federal and New York jurisdiction

If non-exempt employees are required to travel to different work sites during their normal workday, they do not have to be paid for the normal commute time to the first site (that is normal home to work travel), but they should be paid for the travel time between each site they go to during the workday. They do not “clock out” for the travel between work sites. When they travel home at the end of the day, that time also would be considered unpaid normal commute time.

When travel is an integral part of an employee’s job, all travel hours are considered to be work time. “Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the work day, must be counted as hours worked.” In cases where an employee is required to report at a meeting place to receive instructions or to perform other work, or to pick up certain items for work, “the travel from the designated place to the workplace is part of the day’s work and must be counted as hours worked regardless of contract, custom, or practice.” See 29 C.F.R. §785.38.

2nd circuit case law impacting New York employers

Fair Labor Standard Act regulations interpreting the Portal-to-Portal Act do not require compensation for time spent in ordinary home to work travel which is a normal incident of the worker’s employment. 29 C.F.R. § 785.35. Although the regulation uses the terms “ordinary travel” and “normal travel,” this does not represent an objective standard of how far most workers commute or how far they may reasonably be expected to commute. Instead, it represents a subjective standard, defined by what is usual within the confines of a particular employment relationship.

We reviewed the federal caselaw in the 2nd Circuit (where New York is located). In Kavanagh v. Grand Union Co., 192 F.3d 269 (2nd Cir. 1999), the plaintiff was a refrigerator and utility mechanic who provided mechanic services at over 50 Grand Union stores in Connecticut and New York, including upstate New York. He spent multiple hours per day in unpaid travel. The court noted that “[w]e interpret ‛normal travel,‘ as used in this regulation, to refer to the time normally spent by a specific employee traveling to work. The term does not represent an objective standard of how far more workers commute or how far they may reasonably be expected to commute. Instead, it represents a subject standard, defined by what is usual within the confines of a particular employment relationship.” In this case, the court found that “extensive travel was a contemplated, normal occurrence under the employment contract” and that thus the employee was not entitled to compensation for travel time beyond his normal commute.

In Kuebel v. Black & Decker (U.S.) Inc., 2009 U.S. Dist. LEXIS 43846, Black & Decker had a policy compensating retail specialists for their commute time in excess of 60 miles or in excess of 60 minutes. Retail specialists were assigned to Home Depot stores within a geographic area. The plaintiff was assigned to 6 Home Depot stores, ranging from 20-25 minutes to three hours from his home. The court found that the employer’s policy was legally compliant and the plaintiff was not entitled to compensation for travel other than what the employer’s policy provided for.

New York law considerations and employer takeaways

We did not find any New York State legal guidance relevant to this issue, or additional requirements above and beyond federal law.

Employers may agree to pay for ordinary commuting time even though it is not legally required. Such time does not have to be counted as hours worked and is not subject to the minimum wage and overtime requirements. In the instance you describe, it can be argued that plumbers can expect to travel to customers’ homes. How far they can be expected to travel is subjective and within the confines of their particular employment relationship. Based on the cases we found, it does appear that this employer’s commuting policy could be considered fair and legally compliant. However, this is a fact-specific issue and the HR Hotline does not provide legal advice. As such, this employer may want to consult with an attorney to ensure that their policy is legally compliant.

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