The Employer’s Wage and Hour Advisor

In Walters v. Professional Labor Group, LLC, 120 F.4th 546 (7th Cir. 2024), the plaintiffs were nonexempt employees of a staffing agency who were entitled to minimum wages and overtime pay. They traveled (usually by car) to worksites where they stayed and worked for days or weeks for the employer’s client, and then returned home or moved to the next worksite. The employer did not pay the employees for travel to or from those worksites, as it considered it non-compensable commuting time.  The Seventh Circuit disagreed.

While the FLSA generally does not require employers to compensate employees for ordinary commuting time, that rule changes when travel to a worksite keeps an employee away from home overnight. Specifically, the FLSA regulations state:

“Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday…The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days.”

29 C.F.R. § 785.39. For example, the regulations provide that, if an employee regularly works from 9 a.m. to 5 p.m. Monday through Friday, the travel time to overnight assignments during those hours is worktime whether it occurs during those weekdays or on the weekend. 

The Seventh Circuit found that the issue in Walters was a straightforward application of 29 C.F.R. § 785.39.  The court decided that the plaintiffs’ time travelling to remote client sites for overnight assignments was compensable when that travel time occurred during the employee’s “normal working hours.” It rejected the employer’s argument that travel time could cut across the workday because the employee’s workday did not begin until they arrive at the job site. 

Conversely, in an unpublished (and non-binding opinion), the Sixth Circuit found in favor of the employer regarding an analogous travel-time dispute. In Abell v. Sky Bridge Resources, LLC, 715 Fed. Appx. 463 (6th Cir. 2017), the Sixth Circuit found that travel time to overnight sites was not compensable.  Such divergent decisions arguably create a circuit split, which further complicates matters for employers operating in multiple states.

Given these varying opinions, and other complexities arising out of travel-time issues, employers should carefully analyze whether their nonexempt employees are owed wages for certain types of travel time.  Special attention should be given where nonexempt employees work jobs requiring overnight stays.  Where there is uncertainty about whether travel time is compensable, it is best to seek expert legal counsel.