Under the Washington Minimum Wage Act (MWA) 1, employers must pay their employees for all “hours worked”. Whether activities are counted as hours worked is unfortunately not an easy concept, especially when it comes to commuting and travel times. Although employers generally do not have to pay their employees for their daily commute to and from work, Washington case law has identified some commuting contexts that count as hours worked. Employers should immediately update their travel time policies and practices to ensure they are paying their employees in full for all hours worked, in accordance with the recent Port of Tacoma vs. Sacks2 decision.
Obligation of the employer to pay for the hours worked
The relevant MWA regulation defines “working hours” as “all hours during which the employee is authorized or obliged by the employer to work on the employer’s premises or at a prescribed workplace”. The Department of Labor and Industry (the Department) has issued an Administrative Policy which details the Department’s interpretation of what type of activity or time counts as countable hours worked
The Ministry’s guideline distinguishes between “commuting time” and “travel time”. The guideline defines “commuting time” as the time an employee travels between work and home, and “travel time” 5 as “travel time for business purposes”. Travel time is 7
Understand when commute or travel time is reimbursable
Three Washington appeals cases highlight the difference between commuting time and travel time, which counts as working time.
First, in the Anderson v. provided that the ferry to and from work was commute rather than work.9 While the court did not define “on duty” in the context of the department’s “working hours” regulation, the court found that workers were free to recruit during “various personal activities” (e.g. reading, knitting, playing cards, listening to music and napping) while traveling on the ferry.10
Four years later, the Washington Supreme Court relied on Anderson’s interpretation of what it means for an employee to be “on duty,” in Stevens v. Brinks Home Security home to their place of work and home from their last place of work.12 The court adopted Anderson’s approach to assessing the extent to which employees are free to engage in personal activities and in control of vehicles during their driving time. 13 The court found that it was significant that workers seldom went to the employer’s office, were on duty during the journey and were prohibited from running personal errands or doing personal activities in the truck.14 Based on these facts, the court came to the Conclusion that workers were “on duty” while driving the trucks.15 Accordingly, unlike Anderson, the Stevens Court ruled that workers’ time commuting between home and work was an allowable time because they were used they in the sense of the legal definition of hours worked “on duty “.16
While Anderson and Stevens help define when an employee’s commuting between home and work counts as hours worked, the recent Port of Tacoma v. Sacks17 with which activities count as working hours when an employee travels to another city. In the Sacks case, the Washington Court of Appeals found that total travel time for a trip outside of the city – including travel time to the airport, time at the airport, flight time, and travel time outside of the city – city location – counts as creditable time worked. 18 The court did not take into account the fact that the employees occasionally spend a lot of time on personal activities, but praised the unpublished interpretation of the ministry that all travel times “from the time the employee leaves the house until he arrives at his hotel in the other city, everything is reimbursable ”as well as“ the time from which the employee leaves the hotel. . . in the remote city until they get home. ”19 The Sacks Decision therefore requires employers to pay their employees for journeys from their place of residence to an airport or similar location, even if that component of the journey outside the city takes less time takes longer than the regular commute of the employees. In addition, the Sacks decision provides a clear rule that trips outside of the city count as hours worked, even if employees can use a significant portion of that travel time for personal activities.
Washington employers should keep the following in mind:
- Guidelines: Employers should review and update their employment guidelines and employee handbooks. These records should clearly state that (1) employees are required to report all hours worked and (2) the employer compensates employees for all hours worked. In addition, employers should carefully consider how best to inform their employees about the distinction between regular commute time and creditable travel time. Employers can address these issues in general working time guidelines and manuals, out-of-town travel guidelines, company vehicle guidelines, or internal personnel guidelines that lead to notifications to employees as needed.
- Practices: Consider whether non-exempt employees should travel outside of the city. While this can sometimes be important for business purposes, the total cost of door-to-door travel can be expensive and other options (e.g. remote participation) may exist.
- Audits: Employers should regularly review their records to ensure compliance with wage payment requirements, including those related to travel time allowance.
Regardless, employers should carefully review Anderson, Stevens, and Sacks and any available department policies or guidelines to determine whether their employees’ commute and travel time counts as countable hours worked.
1 RCW 49.46.
2,495 p. 3d 866 (2021).
3 WAC 296-126-002 (8).
4th DEPARTMENT OF WORK & INDUS., ES.C.2, WORKING HOURS, (July 19, 2021),
5 ID no. at 3.
6 ID no. at 2-3.
7 ID no.
8 115 Wn. App. 452, 63 p.3d 134 (2003).
9 ID no. at 454-56.
10 ID no. at 454.
11 162 Wn.2d 42, 169 P.3d 473 (2007).
12 ID no. at 45.
13 ID no. at 48.
14 ID no.
15 ID no.
16 ID no. at 49.
17 495 p. 3d 866 (2021).
18 ID no. at 875.
19 ID no. 869. It is noteworthy that the Ministry’s guidelines, which the court respected, were not publicly available. ID.