If you use an employer-provided vehicle for your commute, you may be entitled to payment for your travel time. The Employee Commuting Flexibility Act (ECFA) requires that employers pay employees for time spent commuting in employer vehicles unless the use of the employer’s vehicle was 1) “for travel that is within the normal commuting area for the employer's business or establishment;” and 2) “subject to an agreement on the part of the employer and the employee or representative of such employee.”
A 2011 Department of Labor letter states:
"The 'Employee Commuting Flexibility Act' (Section 2102, Public Law 104-188) amended the Portal-to-Portal Act to allow employers and employees to agree to the use of employer-provided vehicles for commuting to and from work, at the beginning and end of the workday, without the commuting time being counted as hours worked. In order for this commuting time not to be considered hours worked, the use of the employer’s vehicle must be within the normal commuting area for the employer’s business or establishment and the use of the vehicle must be subject to an agreement between the employer and the employee or employee’s representative."
Whether or not you are entitled to payment for commuting while in an employer’s vehicle can be a complicated issue. First, the ECFA is only intended to apply to the use of vehicles that do not impose greater difficulty to operatethan an auto, van, or pickup normally used in commuting. This means that if you are commuting in a cement truck, dump truck or other large vehicle that is more difficult to operate than a normal vehicle, you may be required to be paid for your commute. Second, if you are in a vehicle “normally used in commuting” but are required to travel outside the “normal commuting area” you may be entitled to travel time pay.
The normal commuting area can vary depending on the specific requirements of a particular job. In Davis v. Skylink LTD, a federal court in West Virginia discussed what “normal commuting are” means. The court explained:
"An employer's 'normal commuting area' may be defined in several ways. 'Normal means that the commute is within the range a particular type of employee may expect to travel as part of his or her job. As stated by the Department of Labor, employee travel between home and remote job site is non-compensable 'unless the time involved is extraordinary.'"
There is no clear-cut definition of what “normal commuting area” means. It could be different in each case and requires a detailed factual analysis.
If you think you may be entitled to travel time pay for a commute in your employer’s vehicle the attorneys at Lebau & Neuworth have been successful in litigating class active travel or drive time cases ,and we may be able to help. For more information, contact us at lebauneuworth.com.
