Introduction to the Fair Labor Standards Act (FLSA)

collective bargaining agreement with its employees which excludes time spent changing clothes on its premises from work time. However, the Ninth Circuit has held that an employer may not negotiate an exclusion for time spent donning and doffing protective gear on the employer’s premises. 70 For example, the donning and doffing of unique protective gear in a meat processing plant was found to be compensable when the gear consisted of, among other things, plexiglass armguards, metal-mesh leggings, and sanitary chain-link aprons; if the items were required both by applicable regulations and company rule; if the items were necessary for worker safety; and if they had to be donned and doffed at the plant itself. 71 However, police officers who have the option and ability to don and doff clothing and related protective gear at home, are not entitled to compensation for donning and doffing of that gear. 72 M. T RAVEL T IME The compensability of travel depends on the kind of travel involved and whether the agency is a charter city or a county (chartered or not). If the agency is a charter city or county (chartered or not), then the compensability of overnight travel time is determined by the FLSA. The compensability of overnight travel time for all other agencies is determined by California minimum wage rules. 73 Agencies should also review any local rules, policies, procedures or practices regarding travel time that may apply. Bargaining agreements and past practice can affect the compensability of travel time. 74 The general rules regarding travel time under the FLSA are summarized below. 1. T RAVEL TO AND FROM W ORK Ordinary travel to and from work is generally not hours worked, unless there is an employment agreement or custom or practice to pay under the circumstances. 75 This is true whether the employee works at different job sites, or at a fixed location. Thus, normal travel (e.g., the commute) from home to work is not work time. 76 Moreover, ordinary commute time is not converted to work time merely because the employer supplies the vehicle. 2. T RAVEL D URING THE W ORKDAY The general rule regarding travel during the workday is as follows: “Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.” 77 When an employee is required to report someplace before work (e.g., to pick up work materials or to perform other work), the travel from the designated place to the workplace is compensable work time. 78 In general, if an employee is required to travel away from the worksite to another location for a period that extends beyond normal working hours, the compensable amount of time depends on whether the employee is required to return back to work, or whether the employee travels home from the other location. If the employee is required to return to work, the entire period (the travel to the other location, the work performed there, and the return time back to work) is

Introduction to the Fair Labor Standards Act (FLSA) ©2019 (s) Liebert Cassidy Whitmore 19