Through Private Duty Home Care at NAHC’s partnership with Littler Mendelson P.C Labor & Employment Law Solutions, we are excited to share the “Ask the Experts” Article. Each week, we will feature a new question, from you our members, related to workplace issues and topics that will be answered from our experts and partners at Littler.
This week’s question comes from one of our Private Duty Home Care members and concerns pay for travel time to assignments.
Question: I just started my own agency and one of my employees, a home care aide, is asking if she is entitled to additional pay for the time it takes her to drive to her client’s homes. Is this something I am required to pay?
Answer by Angelo Spinola
Different states have different rules for travel time, but generally speaking work related travel between client homes within a single day of work must be paid under federal and state law. Under federal law, the Portal-to-Portal Act eliminates “from working time certain travel and walking time and other similar ‘preliminary’ and ‘postliminary’ activities performed ‘prior’ or ‘subsequent’ to the ‘workday’ that are not made compensable by contract, custom, or practice.” 29 C.F.R. § 785.9. Thus, employers do not typically have to compensate employees under the following two situations: (1) normal home-to-work and work-to-home travel; and (2) other activities considered preliminary and postliminary to an employee’s principal job activities. Id. As such, home to work, or work to home travel, is not compensable in an ordinary situation.
Under federal law, assuming an employee has engaged in no work activities prior to the start of travel, employers generally do not have to count as time worked the time an employee spends “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities, which such employee is employed to perform” either at the beginning or end of the workday. 29 C.F.R. § 785.34. However, travel time from job site to job site during the course of the work day is considered work time. 29 C.F.R. § 785.38. The United States Department of Labor has advised that, where the travel is not direct from job site to job site, such that the employee is relieved from duty for a period sufficient to engage in purely personal pursuits, only the time necessary to travel directly from the first job site to the second job site is considered compensable travel time. See United States Department of Labor, Wage and Hour Division, Domestic Service Final Rule Frequently Asked Questions (FAQ), http://www.dol.gov/whd/homecare/faq.htm. The U.S. DOL’s FAQ materials provide the following example:
Tiffany is a direct care worker who is employed by Handy Home Care Agency. She provides services to two of the agency’s clients, Mr. Jackson, from 9:00am to 11:30am, and Mr. Smith, from 2:00pm to 6:00pm. Tiffany drives to the two different worksites which are 30 minutes apart. She leaves Mr. Jackson’s home at 11:30am and goes to a restaurant for lunch, shops for herself, and then arrives at Mr. Smith’s home at 2:00pm.
Because Tiffany is completely relieved from duty long enough to use the time effectively for her own purposes (i.e., lunch and shopping) not all of the time is hours worked. The 30 minutes required to travel between the two homes is hours worked and, as of January 1, 2015, must be paid by the Handy Home Care Agency even though Tiffany did not travel directly between consumers.
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Angelo Spinola is a Shareholder with Littler Mendelson P.C., and is a lead attorney for the Home Care Practice Group. He represents home care employers across the country in various types of actions brought under the Fair Labor Standards Act and various state wage and hour laws. Appearing on behalf of employers in federal and state courts and administrative tribunals throughout the U.S., Angelo has litigated all types of discrimination cases, including age, disability, race, national origin, sex, harassment and retaliation. Angelo’s experience also includes helping employers respond to wage and hour investigations by the Department of Labor and state agency equivalents, conducting wage and hour practices audits, developing compliance measures that minimize wage and hour exposure, and representing management in grievance arbitrations. Additionally, Angelo assists employers with promoting an issue-free work environment through counseling, training and other preventive strategies. He also conducts training on employment-related issues for management personnel, lawyers and human resources professionals. Angelo received a J.D. from George Washington University Law School.