The “daily commute” is an iconic element of routine life in the U.S. In 2013, about three-fourths of American workers drove to work by themselves. Average commute time in New Jersey was 28.6 minutes in 2000. That number grew to 30.9 minutes in 2013. Assuming a fifty-week work year, New Jersey workers therefore spent an average of 128 hours and 45 minutes in morning traffic. The number has probably only increased since then, and this does not include time spent getting home at the end of the day. This data raises an interesting question about when a commute constitutes “work” in a legal sense, meaning time for which an employer must compensate a commuting employee. The short answer is that commuting time is usually not “work” in this sense, but the longer answer offers some exceptions to that general rule.
New Jersey law does not address the question of whether commuting time is compensable, so we must look to federal law. The Fair Labor Standards Act (FLSA) of 1938, 29 U.S.C. § 201 et seq., establishes a national minimum wage and rules for overtime compensation. It does not provide a specific definition of “work.” Congress enacted the Portal-to-Portal Pay Act (PPPA), 29 U.S.C. § 251 et seq., in 1947 to address “potential retroactive liability [that] may be imposed upon employers” under the FLSA. Id. at § 251(a). Section 4 of this law exempts employers from liability under the FLSA for failing to pay the minimum wage to an employee for “walking, riding, or traveling to and from the actual place of” employment. Id. at § 254(a)(1).
The U.S. Department of Labor (DOL) has issued regulations based on § 4 of the PPPA. Commuting from home to work is not compensable time under the FLSA in an “ordinary situation,” meaning when such travel is “a normal incident of employment.” 29 C.F.R. § 785.35. This applies, according to the DOL, regardless of whether a worker has a fixed place of employment or works for an employer at multiple locations.
Commute time during the work day, “such as travel from job site to job site,” is compensable. Id. at § 785.38. Similarly, commute time during out-of-town, overnight trips may constitute “work” under the FLSA. Id. at § 785.39. A commute from home to work may constitute compensable time in certain situations, such as:
- “Emergency situations,” e.g. when “an employee who has gone home” at the end of the day “is subsequently called out at night to travel a substantial distance,” id. at § 785.36; and
- An employee with a fixed work site “is given a special 1-day work assignment in another city,” id. at § 785.37.
A court ruling in Europe, while unlikely to have much influence on courts in the U.S., offers a different view of this issue. The European Court of Justice ruled in late 2015 that workers with no fixed place of work must be compensated for time spent commuting to work sites. Under U.S. law, those workers would be entitled to compensation for time spent commuting during the work day—i.e. between 9:00 and 5:00. This ruling would make their employers pay them for their morning commute from home as well.
If you need to speak to an employment attorney about a legal matter in New Jersey or New York, please contact the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997.
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New Federal Overtime Rule Blocked by Judge, Faces Uncertain Future, The New Jersey Employment Law Firm Blog, February 9, 2017
New Laws, Regulations Regarding Employee Sick Leave Set to Take Effect in New Jersey, The New Jersey Employment Law Firm Blog, November 11, 2016
New Jersey Federal Court Certifies FLSA Overtime Lawsuit as Collective Action, The New Jersey Employment Law Firm Blog, November 4, 2016