on call travel pay

[acmagician]

I work for a service oriented business in Texas. We are required to be "on call" every third week including Sat. and Sun. We are subject to being called out 24 hours a day. We drive a company vehicle to and from the customers job site. Are we entitled to be paid from the time we leave home till the time we return?

[trademan]

The below is from the Texas Workforce site

H. Travel Time

The easiest way to think of the travel time regulations is to remember that basically, any travel on company business that cuts across the normal workday is compensable time worked, regardless of whether such travel occurs on a day the employee is normally scheduled for work.


The wage and hour regulation at 29 C.F.R. 785.33 states that whether time spent in travel must be considered working time depends upon the kind of travel involved. The general rule is found in 29 C.F.R. 785.35, which provides that "normal travel from home to work is not worktime". That means that the normal commute from home to work and vice-versa is not compensable. However, 29 C.F.R. 785.36 states that home to work travel and back again that falls outside of the regular hours may be compensable hours worked. For example, if the worker is called back to work somewhere on an emergency basis for one of the employer's customers and must travel a "substantial" distance, the travel time would be compensable. The regulation does not provide that all such travel time is compensable; the decision would presumably be made on a case-by-case basis. Similarly, a special temporary assignment in another city would involve compensable travel time, according to 29 C.F.R. 785.37, but the employer could disregard the time corresponding to the normal home-to-work commute and the time spent on meals.

Time spent traveling between worksites during a workday is compensable under 29 C.F.R. 785.38. For example, if a worker reports to the main office to start the day and is then told to report to another job site, all time spent traveling to that worksite and back again to the main office will be paid. Some workers normally report to a number of jobsites each day as part of their duties; all such time is compensable. If the worker does not have to report back to the main office after finishing at the last jobsite, but instead returns directly home, the time spent returning home is not compensable.

Many questions arise concerning travel to other locations involving overnight stays. 29 C.F.R. 785.39 states that "travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties." However, if the employee travels as a passenger outside normal working hours, the time is not compensable. An employee who serves as a driver or a pilot for other employees would be paid for the entire travel time. This same rule applies even in the case of travel on days not normally worked. For instance, if the normal hours are 8 am to 5 pm from Monday through Friday, and the employee must perform job-related travel on Sunday from 3 pm to 7 pm, the employer would need to pay only for the time from 3 to 5 pm. Similarly, work performed while traveling must be counted as hours worked under 29 C.F.R. 785.41.

The travel time should be paid at the employee's regular rate of pay; if travel time is paid by agreement at a rate less than the employee's normal pay rate for non-travel duties, exact records of non-travel time and travel time would have to be maintained, and the regular rate of pay would be calculated using the "weighted average" method – see 29 C.F.R. 778.115 and 778.318(b). This lower rate of pay for travel is mentioned in an administrative opinion from DOL dated January 22, 1999 (BNA, WHM 99:8211), which basically states that paying a lower rate of pay for travel time is allowed under the FLSA as long as the rate is at least minimum wage, and that the regular rate for overtime purposes would be the weighted average of the two rates (29 C.F.R. 778.115).


Strategic tip: paying employees a different rate of pay for travel time is generally inadvisable due to the complexity of the overtime calculation method necessary and the recordkeeping involved; in addition, any company attempting this should do so only on the basis of a clear written agreement prepared with the assistance of an attorney experienced in this area of the law.