World Fence News

30 • JULY 2018 • WORLD FENCE NEWS Shedding some light on fair pay for travel time BY TOM LUBY, PRESIDENT, PROFIT BUILDERS INTERNATIONAL A question I am often asked by fence industry clients is "How do I calculate compensable hourly rates for my installation crews when they are working out of town or on jobs that require a lot of travel time?" Not surprising, the laws concern- ing compensable working hours can be confusing, to say the least, but the fair and accurate determination of compensable working hours is a ma- jor concern in the fencing industry for both employer and employee alike. And the laws apply to both hourly and salaried employees alike. Under- standing compensation issues regard- ing work time versus travel time, both to and from work and/or job sites and travel during the work day, can be challenging, so I am attempting to try to clear up a few points regarding this. Some of the issues of concern re- garding compensable working hours range from time spent picking up sup- plies or waiting in line at the lumber yard to time spent driving to and from work or a work site to time spent at- tending training classes such as the AFA and NAFCA training schools. Some years back, because of the high degree of concern by so many of my clients in this area, I researched the applicable laws and, while I am not a lawyer and therefore the information contained in this article is not legal advice but merely FYI, I found many interesting and noteworthy opinions concerning compensable travel time. My sources of information are the U.S. DOL and the Fair Labor Stan- dards Act (FLSA) of 1947, and the amendment commonly referred to as the Portal-to-Portal Act. The Fair Labor Standards Act and the Portal-to-Portal amendment In the application of the minimum wage and overtime compensation pro- visions of the Fair Labor Standards Act (FLSA) to activities of employees on or after May 14, 1947, the deter- mination of hours worked is affected by the Portal-to-Portal Act only to the extent stated in section 4(d). This sec- tion requires that: "… in determining the time for which an employer employs an em- ployee with respect to walking, riding, traveling or other preliminary (before work) or postliminary (after work) ac- tivities described (in section 4(a)) there shall be counted all that time, but only that time, during which the employee engages in any such activity which is compensable (under contract, custom, or practice within the meaning of sec- tion 4 (b), (c)). This provision is thus limited to the determination of wheth- er time spent in such "preliminary'' or "postliminary'' activities, performed before or after the employee's "prin- cipal activities'' for the workday, must be included or excluded in computing time worked." I was quoting directly from the legal statute but I am going to try to condense the information I discovered into non-legal, easy to understand terms for the sake of expediency and to achieve a more universal level of clarity. The original turn of the centu- ry versions of the amendment to the FLSA concerning the Portal-to-Portal Act were designed to govern the pay of miners who had to travel, some- times extensive amounts of time, from the mouth, or portal, of the mine shaft down to the working face (or area) of the mine where their work was per- formed. This "portal to face" travel time was sometimes more than an hour or two below the ground. At that time it was determined by contract with the major labor unions that the time the miners spent traveling from the portal of the mine was compensable; how- ever, the 1947 modification to the act clearly states that no employer shall be liable to his/her employee for fail- ing to pay minimum wages and/or overtime compensation for time spent traveling to and from the actual place of performance of the principal activ- ities of the company. This includes time before a partic- ular workday commences and after a workday ceases, what I earlier referred to as "preliminary'' or "postliminary'' activities. In official DOL jargon the legal duration of the compensable workday is referred to as the "whistle-to-whis- tle" time. There are many notable excep- tions to this rule, however. The DOL and the FLSA law provides for these qualifications: Travel categories: The FLSA defines four basic cat- egories of employee travel time, all of which are applicable to the fencing in- dustry. They are: 1. Portal-to-portal travel (not in the sense of the original miners por- tal, but traveling to and from work), This beautiful new low-maintenance privacy fence combines the strength of extruded aluminum top, middle and bottom rails with rich variegated-color vinyl panel inserts. rich variegated-color our heavy-duty aluminum + your favorite vinyl panels U LT R U M ™ 6 0 0 5 - T 5 A L U M I N U M A L L O Y | E X C L U S I V E P O W E R C O AT ™ F I N I S H ULTRAFENCE.COM | 800.656.4420 Ultra and the picket caps logo is a registered trademark of Ultra Aluminum Manufacturing Inc. eclipse partial

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