Fact Check: Travel Time Pay: Federal Rules, California Cases, and State Risk

29 USC §254 (the Portal-to-Portal Act of 1947) excludes ordinary commute and preliminary/postliminary activities from FLSA compensable hours

The Employee Commuting Flexibility Act of 1996 (Pub. L. 104-188, §§ 2101–2103, 110 Stat. 1928, Aug. 20, 1996) amended 29 USC §254(a) to clarify that employer-provided-vehicle commute travel is NOT a principal activity when the travel is within the normal commuting area AND the vehicle's use is subject to an agreement between the employer and the employee

29 CFR §785.33 introduces Subpart C's travel-time framework, cross-references §785.34 (Portal-to-Portal Act application) and §§785.35–785.41 (the four federal travel categories)

29 CFR §785.35 establishes that ordinary home-to-work travel is NOT worktime — including for employees who work at different job sites — with closing bright-line rule "Normal travel from home to work is not worktime"

29 CFR §785.36 makes emergency callbacks to a customer site compensable ("If an employee who has gone home … is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer's customers all time spent on such travel is working time") and takes no position on emergency travel back to the regular workplace

29 CFR §785.37 makes special one-day out-of-city assignments compensable with deductions for normal home-to-depot commute and normal meal periods; the regulation's illustration uses a Washington-DC employee assigned to NYC (depart 8am, arrive noon, work through 3pm, return at 7pm)

29 CFR §785.38 makes site-to-site travel during the workday compensable, and extends compensability to travel from a mandatory meeting place where the employee receives instructions, performs work, or picks up and carries tools

29 CFR §785.39 makes overnight business travel as a passenger compensable only during regular working hours, including the corresponding hours on nonworking days (Saturday/Sunday for a Monday-Friday employee), with regular meal periods deducted

29 CFR §785.40 allows the employer to count either the driving time OR the equivalent public-transit hours when the employee is "offered public transportation but requests permission to drive his car instead"

29 CFR §785.41 establishes that work performed while traveling is compensable; the driver of a truck/bus/automobile/boat/airplane is always working while riding except during bona fide meal periods or while permitted to sleep in adequate employer-furnished facilities

29 CFR §785.19 — bona fide meal periods require the employee to be "completely relieved from duty for the purposes of eating regular meals"; ordinarily 30 minutes or more

California IWC Wage Orders are promulgated under California Labor Code §1198 and apply sector-by-sector to substantially all California employees, with a uniform "hours worked" definition: time the employee is "subject to the control of an employer," including all the time the employee is "suffered or permitted to work, whether or not required to do so"

California Labor Code §510 requires 1.5× the regular rate for hours over 8 per workday, 2.0× for hours over 12 per workday, 1.5× for hours over 40 per workweek, and 7th-consecutive-day premiums

California Labor Code §2802 requires employers to indemnify employees for necessary expenditures incurred in direct consequence of the discharge of duties

California IWC Wage Order 16 (construction, drilling, logging, mining industries) has additional reporting-time and travel-time provisions; mandatory crew meetings trigger compensable travel from the meeting point under California law more readily than under federal law

New York Labor Law §663 + 12 NYCRR §142-2.1(b) — "hours worked" includes time the employee is "required to be available for work at a place prescribed by the employer"; federal Portal-to-Portal Act does not control NYLL state-law claims

Washington Administrative Code 296-126-002 — "hours worked" includes "all time during which an employee is authorized or required to be on duty on the employer's premises or at a prescribed workplace and all time during which an employee is permitted to work"

Oregon Revised Statutes §653.010 — "hours worked" includes time the employee is "required or permitted" to work AND time required to be at a prescribed location; Oregon BOLI has interpreted this to include mandatory employer-provided transit

Colorado CDLE COMPS Order Rule 1.9 (2020 revision) — "hours worked" includes "all time during which an employee is performing labor or services for the benefit of an employer"; 2020 revision explicitly captured pre/post-shift required activities

Massachusetts MGL c.151 §1A — wage-and-hour definition tracks federal broadly; MGL c.149 §150 makes treble damages automatic for wage violations

Illinois Minimum Wage Law tracks federal Portal-to-Portal Act; the Wage Payment and Collection Act amendments make class certification easier; federal floor controls travel time but lower class-cert barrier increases litigation risk

Alaska AS 23.10.060 — state wage and hour act with daily overtime layered on top; travel-time analysis follows federal Portal-to-Portal Act

Nevada NRS §608.018 — daily overtime for workers earning less than 1.5× the state minimum wage; travel-time analysis follows federal Portal-to-Portal Act

29 CFR Part 552 — Domestic Service rule historically exempted some home-care workers from FLSA minimum-wage and overtime coverage; a 2013 amendment (effective Jan. 1, 2015 after a court delay) narrowed the exemption — drive time between patient locations is generally covered for home-care workers employed by third-party agencies

FLSA Motor Carrier Act exemption at 29 USC §213(b)(1) — interstate CMV drivers exempt from §207 overtime; FMCSA hours-of-service rules at 49 CFR §395.3 limit driving but do not displace FLSA where exemption inapplicable; state law (CA, OR, WA) sometimes restores overtime entitlement

FLSA agricultural exemption at 29 USC §213(b)(12) — exempts agricultural employees from §207 overtime when the employer employed 500 man-days or fewer of agricultural labor in the highest quarter of the preceding calendar year; the exemption applies to overtime only and does not address the compensability of the underlying hours (including Morillion-pattern transit)

29 USC §207(a) requires overtime at 1.5× the regular rate for hours worked over 40 in a workweek; compensable travel time counts as "hours worked" for the regular-rate computation

29 CFR §778.115 — weighted-average regular rate for an employee performing two or more kinds of work at different non-overtime rates: total straight-time earnings ÷ total hours worked

29 CFR §778.208 — total remuneration must be included in the regular rate unless excluded under §7(e); 29 CFR §778.209 — non-discretionary bonus apportionment over the period earned

29 CFR §778.303 — retroactive pay increases require recomputation of overtime premiums for affected workweeks

29 CFR §531.35 — wage deductions cannot bring the employee's net wage below the federal minimum-wage floor; pairs with §2802 (CA) and similar state expense-reimbursement statutes for mileage reimbursement on compensable drive time

29 CFR §516.2 requires every employer of a non-exempt employee to record hours worked daily and weekly, basis of pay, regular hourly rate, straight-time and overtime earnings, deductions, and total wages

Federal FLSA statute of limitations — 2 years for non-willful violations; 3 years for willful violations under 29 USC §255(a); liquidated damages double the recovery under 29 USC §216(b) unless good faith is established under 29 USC §260

California unfair-competition statute of limitations — 4 years under Cal. Bus. & Prof. Code §17200 — reaches further than federal §255(a)

New York wage-and-hour statute of limitations — 6 years under NY Lab. Law §198

Massachusetts mandatory treble damages under MGL c.149 §150; 3-year statute

California Labor Code §206.5 requires Labor Commissioner or court approval for valid wage releases

California waiting-time penalty under Labor Code §203 — up to 30 days of wages for unpaid wages at separation

29 CFR §785.17 — on-call standby compensability turns on the totality of the circumstances per Skidmore v. Swift & Co., 323 U.S. 134 (1944)

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), establishes the burden-shifting rule when employer recordkeeping is inadequate — the employee carries the burden to show uncompensated work by "just and reasonable inference"; the burden then shifts to the employer to come forward with evidence of the precise amount of work performed

IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), established the continuous workday doctrine — once the workday has begun via the first compensable "integral and indispensable" activity, all time until the last compensable activity is part of the continuous workday

Integrity Staffing Solutions, LLC v. Busk, 574 U.S. 27 (2014), articulated the federal "integral and indispensable" test: "an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities"

Villarino v. Pacesetter Personnel Service, Inc., No. 23-10645 (11th Cir. Dec. 5, 2025), affirmed summary judgment for the employer on three holdings: optional employer-provided transit was NOT integral and indispensable; optional tool pickup was NOT compensable; transportation-cost deductions were permissible

Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), affirmed the use of representative evidence in class-action overtime claims when the employer's records are inadequate — extending the Mt. Clemens inference to aggregate proof

Skidmore v. Swift & Co., 323 U.S. 134 (1944) — totality-of-the-circumstances test for on-call standby compensability

Morillion v. Royal Packing Co., 22 Cal.4th 575, 94 Cal.Rptr.2d 3, 995 P.2d 139 (Cal. 2000), held that bus travel time was compensable as "hours worked" under California IWC Wage Order 14-80 (agricultural wage order); workers were "subject to the control of an employer" during the time and the "subject to control" prong was independently sufficient

Overton v. Walt Disney Co., 136 Cal.App.4th 263 (Cal. Ct. App. 2006), held that Disney did NOT owe pay for the satellite-lot-to-entrance shuttle time because Disney did not REQUIRE employees to park in the satellite lot — 10% used alternate transportation that bypassed the shuttle

Troester v. Starbucks Corp., 5 Cal.5th 829, 422 P.3d 880 (Cal. 2018), rejected the federal de minimis doctrine for California state-law claims under Labor Code §§510, 1194, 1197 and IWC Wage Order 5-2001

Parking-and-shuttle policies can create California wage exposure when the employee cannot realistically decline the route, even if the policy is labeled voluntary

DOL Wage and Hour Division Fact Sheet #22 is the canonical agency reference for "hours worked" under the FLSA, including travel time

41 remaining states follow federal Portal-to-Portal Act exclusions for state-law claims; §254(a) safe harbor applies; ordinary commute non-compensable; site-to-site compensable; §§785.36–785.41 categories control

Worked example — 30 billable hours at $30/hr plus 12 drive hours at $15/hr produces $1,080 straight-time, 42 total hours, $25.71 regular rate, 2 overtime hours, $25.71 half-time premium, $1,105.71 total weekly compensation

Camp v. Home Depot U.S.A., Inc., 84 Cal. App. 5th 638 (Cal. Ct. App. 2022); California Supreme Court granted review on February 1, 2023 (docket S277518) — held time-clock rounding impermissible under California law when the employer has actual exact-time data