Unpaid Commute vs. Paid Travel Time

Today’s FLSA Question: I am the fire chief of a full-time paid fire department with seven stations. Firefighters bid by seniority to a preferred station. We utilize an out-of-rank system to fill most vacancies within the officer ranks. This out-of-rank system requires senior firefighters to move up and cover vacant officer positions. This can result in firefighters being required to work in stations they did not bid to. One of my firefighters is claiming he should be paid for his travel time and reimbursed for mileage since the out-of-rank assignment has him traveling across the city “against his will…” The basis of his argument is the FLSA mandates work-related travel be compensated. Does the FLSA require this payment?

Answer: Chief, there are a couple of different issues present here. Let’s tackle the easy one first.

The FLSA does not require employers to reimburse employees for mileage. Many employers choose on their own volition (or through collective bargaining, city policy, etc.) to reimburse employees for expenses associated with utilizing a personal vehicle for work-related travel. However, the FLSA does not require it in any shape, way, or form.

Now onto the next issue. Should a firefighter receive compensation while commuting from his home to his “temporarily” assigned station? Has anyone else noticed the skills that tend to make a firefighter invaluable to his or her organization (ingenuity, perseverance, tenacity, etc.) also tend to make them extremely challenging to manage! Only a firefighter could come up with this type of an argument.

Regulations drafted by the Department of Labor (DOL) and a vast majority of courts have found as a general rule an employee’s ordinary commute is NOT compensable. Here is a regulation found at 29 CFR §785.35, entitled Home to work; ordinary situation:

An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.

There are few bright-line rules to help determine what constitutes an ordinary non-compensable commute versus compensable work-related travel. However, courts have traditionally been unsympathetic for employees that have made these types of commuting claims. Absent extraordinary circumstances an employee’s commute time is not compensable hours worked.

However, there are a few important requirements in the above regulation that need to be considered before you make an ultimate decision regarding the above scenario. First, this regulation pertains to commuting only. In the event that an employee is detailed to an outlying station during his or her work shift, this time would be compensable. For example, some firefighters work 48-hour work shifts. In the event the firefighter was assigned to station 3 during the first 24 hours and then moved to station 1 for the next 24 hours, this regulation would not apply.

Second, there can be different rules for employee’s that are commuting with department owned vehicles. While this time can still be considered non-compensable, there are several other factors that need to be examined before making that assumption.

Third, if the fire department requires the firefighter report to one specific station or location to pick up goods or equipment—and then details him or her out to an outlying station—this regulation would likely not apply.

Finally, state laws may dictate some commute time be paid. Typically, this is only applicable if the employer exercises significant control over the employee during the commute, however, in addition to the FLSA, an examination of state laws must be part of any analysis to determine the compensability of a commute.

One last thought to wrap this discussion up. Do you work under the terms of a collective bargaining agreement? If firefighters being detailed out of their home station is creating such a problem, perhaps this should be a topic of discussion during the next round of labor negotiations. Maybe there is an alternative that can be reached that satisfies both sides of the “table.” Good luck on this one!