Employers are often unsure as to whether they must pay nonexempt employees for travel time. Most employers are aware that they generally do not have to pay employees for normal travel from home to work and back. However, the issue becomes more difficult when nonexempt employees travel to various customer locations, trade shows, client meetings, etc.
Another confusing issue occurs when companies provide vehicles to their employees. Proving no good deed goes unpunished, employers may open themselves to liability if they require employees to use their company vehicles without compensating them for their travel time – even when they normally would not have to pay for travel time if the employee used their own vehicle. Courts reason that when employers require employees to use company vehicles, the employer is sufficiently controlling the employees, and this constitutes time worked. Employers have attempted to avoid liability by enacting policies that do not expressly require employees to use company vehicles. his may now not be enough to protect employers.
In September 2015, the Ninth Circuit sent a stern warning to employers who do not expressly require employees to use company vehicles, but practically speaking, nearly all the employees use company vehicles because of parking considerations, carrying equipment, etc. In denying summary judgment, the Ninth Circuit stated that there was a question of fact as to whether the employer – “as a practical matter” — required employees to use its vehicles for their commute. In other words, a sound policy in a handbook may be insufficient to protect employers.
Employers should carefully review their travel time policies, and the facts on the ground, to ensure they are not leaving themselves open to potential liability. There are many intricacies of travel time that create pitfalls for employers, but other aspects that can help employers (e.g., travel time can be paid at a different hourly rate if the correct procedures are put in place).