TRAVEL TIME TO TRAINING – WHO PAYS?
March 26, 2008
From time to time an employee may be required to attend off-site training. Who pays for the time spent traveling to the training site: the employer or the employee? The answer depends on whether federal or state law is applied.
FEDERAL LAW AND CALIFORNIA LAW
Compliance with California state law requires an employer to pay for travel time to mandated off-site training when the time is greater than the normal daily commute. Federal law, however, says that the time to get to assigned training, is not compensable.
Because of the Fair Labor Standards Act (FLSA), employees have not been successful when suing their employer in federal court for back wages for time spent traveling to required training.
But, California state law is permitted to enhance federal labor laws and, therefore, the same lawsuit brought under California law may have resulted in a victory for the employees. To date, the California courts have not yet definitively ruled on such a case.
FEDERAL LAW
In Imada v. City of Hercules (9th Cir. 1998) 138 F.3d 1294, police officers sued a city for ‘FLSA back pay’ for travel time to required training. (The plaintiffs did not seek relief under California state law). As noted above, federal law is governed by the Fair Labor Standards Act. Under the FLSA, travel to required training at an off-site location is treated like the daily commute to work. Neither is compensable by the employer.
The court in Imada ruled against the officers and cited the federal Portal-to Portal Act §254(a)(1), which states activities not compensable under the FLSA include “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.”
29 USCS § 254
The court clarified what this section covered; an employee’s commute to required training was akin to the daily commute to work, except the commute was simply to another location. “[L]aw enforcement officer’s ‘normal home to work travel is not compensable, even where the employee is expected to report to work at a location away from the location of the employer’s premises.’” Imada v. City of Hercules, 138 F.3d 1294, 1296 (9th Cir. 1998).
The key was that the training was an expected part of the job. Thus, the commute to the training was treated no differently than the daily, non-compensable, commute to work.
STRONGER CALIFORNIA STATE LAW
California’s Department of Industrial Relations Legal Section, Division of Labor Standards Enforcement (“DLSE”), has made it clear that state law is stronger than federal law in this situation. California state law provides more rights to employees than federal law when deciding who pays for travel time to required training.
In 2002, the DLSE stated the following, in an official opinion:
Under state law, if an employer requires an employee to attend an out-of-town business meeting, training session, or any other event, the employer cannot disclaim an obligation to pay for the employee’s time in getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from this out-of-town event…can only be characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable hours worked.
(Emphasis added.)
The opinion went on to state that:
The federal FLSA provides
the floor below which no
employer may go, but
when California law
provides greater protections
to employees, the more
protective provisions of
California law will apply.2002 Cal. DLSE LEXIS 31
TWO CALIFORNIA LIMITATIONS ON DUTY TO COMPENSATE
First, the DLSE has also stated that “If you are an hourly paid employee, your employer can establish a separate rate for travel before the work is performed, provided that no rate of pay can fall below the state minimum wage.”
2002 Cal. DLSE LEXIS 31
Second, the DLSE requires compensation only for the travel time greater than the average daily “commute time” to the normal workplace. In a separate 2003 official opinion than the one above, the DLSE stated that:
…in the event an employee with a fixed and assigned workplace is required, on a short-term basis, to travel anything more than a de minimis distance to report to work at a place other than an employee’s usual work place, the employee is entitled to be compensated for the additional time measured by the difference in the time normally required to travel between the employee’s home and the regularly assigned workplace and the time between home and the temporary worksite. It should be noted that this calculation is expressed in “time” and not distance. This is because traffic patterns, of course, vary from location to location and travel times for the same distance would likewise vary.” (Emphasis added.)
2003 Cal. DLSE LEXIS 22
HOW THIS AFFECTS YOUR AGENCY
The cautious employer should be aware of the extra protections afforded to employees under California law, which are greater than federal law. The prudent course of action would be to pay employees for time spent traveling to off-site required training when the time is greater than the normal commute to work.
Additionally, for hourly employees, an employer may establish a different hourly rate for travel ifthis rate is set before the travel occurs. It must also be noted that such agreements would need to be established through negotiations with the labor association representing employees and made a part of the MOU.
As always, it is imperative that you secure advice and guidance from your agency’s designated legal counsel before relying upon any information contained herein. If you wish to discuss this matter in greater detail, however, feel free to contact me at (714) 446-1400 or via e-mail atmjm@jones-mayer.com.