The Wisconsin Builders Association Hot Line is a service provided for the Wisconsin Builders Association by Axley Brynelson. Legal Hot Line answers should be considered a general statement of applicable legal information. Given this format, it is impossible to fully address all potential legal issues which might apply in any particular situation. A determination of any individual’s legal rights in a transaction can only be obtained after a complete analysis of the law and its applicability to the particular fact situation. Please contact the author of the article if additional information is needed, or private counsel, if legal advice is needed.
May an employer have different payment policies for drive time between different employees? For example, may an employer continue to pay its current employees under one drive time policy, but adopt a new, different policy for new employees?
A: Assuming that both drive time wage and hour policies are consistent with wage and hour requirements, you may have different policies for different employees.Is an employer required to pay an employee for drive time to and from a work site?
A: This is an area of law that is fact specific; however, employers need to be very careful as it is a basis for many wage and hour claims. The principles which apply in determining whether or not time spent in travel is working time that must be paid depends upon the kind of travel involved. Wisconsin Administrative Code sec. DWD 272.12(g) explains when travel is considered work time that must be paid (federal wage and hour regulations are similar to Wisconsin law, but must also be individually reviewed if the employer decides that it does not have to pay drive time as work time) :
DWD 272.12(2)(g)2. 2. Home to work; ordinary situation. An employee who travels from home before their regular workday and returns to their 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 they work at a fixed location or at different job sites. Normal travel from home to work is not work time.
DWD 272.12(2)(g)3. 3. Home to work in emergency situations. There may be instances when travel from home to work is work time. For example, if an employee who has gone home after completing their day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of their employer’s customers, all time spent on such travel is working time.
DWD 272.12(2)(g)4. 4. Home to work on special one-day assignment in another city. A problem arises when an employee who regularly works at a fixed location in one city is given a special one-day work assignment in another city. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment if performed for the employer’s benefit and at their special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the “principal” activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call, or like travel that is all in the day’s work. All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to their regular work site, the travel between their home and the railroad depot may be deducted, it being in the “home-to-work” category. Also, of course, the usual meal time would be deductible.
DWD 272.12(2)(g)5. 5. Travel that is all in the day’s work. Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the workplace is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finished their work on the premises at 5 p.m. and is sent to another job which they finish at 8 p.m. and is required to return to their employer’s premises arriving at 9 p.m. all of the time is working time. However, if the employee goes home instead of returning to their employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.
DWD 272.12(2)(g)6. 6. Travel away from home community. Travel time away from the home community for business purposes that occurs for the benefit of the employer is considered hours worked.
DWD 272.12(2)(g)7. 7. When private automobile is used in travel away from home community. If an employee is offered public transportation but requests permission to drive their car instead, the employer may count as hours worked either the time spent driving the car or the time they would have had to count as hours worked during working hours if the employee had used the public conveyance.
DWD 272.12(2)(g)8. 8. Work performed while traveling. Any work which an employee is required to perform while traveling must of course be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when the employee is permitted to sleep in adequate facilities furnished by the employer.
Must drive time that is paid as work time be included for purposes of determining over time?
A: Yes, all work time must be counted as part of an employee’s overtime calculation. If drive time must be paid under applicable state or federal law, then it must be included when calculating overtime. If drive time does not have to be paid (for example, home to work; ordinary situation), but the employer pays the employee for drive time anyway, then the drive time must be considered work time and counted toward an employee’s overtime calculation.
For more information about the Wisconsin Builders Association Hot Line, contact Robert Procter at 608.283.6762 or rprocter@axley.com.
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