For most non-exempt employees, the Fair Labor Standards Act considers time spent traveling during the working day to be compensable working time. Last week, the Third Circuit Court of Appeals applied this principle to travel by home health workers to visit clients. In USDOL v. Nursing Home Care Management Inc., the employer contended that travel time by health care workers during the day was not working time because it was not integral to their actual care duties. The employer also claimed that the travel time was not compensable because it followed or preceded break times.

The Third Circuit had little difficulty rejecting these arguments, affirming a $7 million verdict for the plaintiff. The court noted that by definition, home health care services are provided at patients' homes. Unless the worker can "apparate" at those homes, travel is a principal job duty. As long as the travel occurred during the working day, the fact that it preceded or followed break times did not make it equivalent to non-compensable commuting time.

Home health care and similar businesses should structure employee compensation with the understanding that travel time must be paid, even if they may not derive income from such activities. Employers are free to establish employee work schedules and administrative controls to try to minimize travel time during the working day, but in most situations employees must be paid and this time must be included toward the 40-hour weekly threshold for overtime pay.

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