Under the Washington Minimum Wage Act (MWA),1 employers are required to pay employees for all “hours worked”. Unfortunately, knowing whether activities count as hours worked is not a straightforward concept, especially when it comes to commute and commute time. While employers generally do not have to pay employees for their daily commutes to and from work, Washington case law has identified certain commuting contexts that count as hours worked. Employers should immediately update their travel time policies and practices to ensure that they fully compensate employees for all hours worked in accordance with recent Port of Tacoma vs. Sacks2 decision.
Employer’s obligation to pay for hours worked
The relevant MWA regulation defines “hours worked” to include “all hours during which the employee is authorized or required by the employer to be on duty at the employer’s premises or at a prescribed workplace”.3 Beyond this regulatory definition, the Ministry of Labor and Industry (the Ministry) has issued an administrative policy that provides details on the Ministry’s interpretation of activities or time that count as compensable hours worked.4
Departmental policy distinguishes between “travel time” and “travel time”. The policy defines “commute time” as the time an employee travels between work and home and “commute time”5 as “time spent traveling for business purposes”.6 It is important to note that the policy states that travel time is not compensable, but travel time is.seven
Understand when travel time or travel time is compensable
Three Washington appeals highlight the difference between when employees commute and when they complete travel time that counts as hours worked.
First come Anderson v. Ministry of Health and Social Services,8 the Washington Court of Appeals interpreted what it meant for an employee to be “on duty” and found that the time employees of the Special Commitment Center on McNeil Island spent aboard the ferry provided by the employer to and from work was commuting time, not hours worked.9 Although the court did not define “on duty” in the context of the ministry’s “hours worked” regulation, the court found it important that workers were free to engage in “various personal activities” (p (eg, reading, knitting, playing cards, listening to music, and napping) while traveling on the ferry.ten
Four years later, the Washington Supreme Court relied on from Anderson interpretation of what it means for an employee to be “on duty” in Stevens Against Brink’s Home Security.11 In this case, employees were claiming wages for the time spent driving employer-supplied trucks from their home to their place of work and from their last place of work to their home.12 The court adopted from Anderson an approach to assess the extent to which employees were free to engage in personal activities and to exercise control over vehicles during their commuting time.13 The court found it significant that employees rarely went to the employer’s office, were always on call while driving, and were prohibited from doing personal errands or engaging in personal activities in the trucks. .14 Based on these facts, the court concluded that the employees were “on duty” while they were driving the trucks.15 As a result, unlike Anderson, the Stevens the court ruled that employees’ time commuting between home and work was compensable time because they were “on duty” under the regulatory definition of hours worked.16
While Anderson and Stevens help define when an employee’s commuting activities between home and work count as hours worked, the recent case of Port of Tacoma vs. Sacks17 deals with activities that count as hours worked when an employee travels to another city. In the Bags In that case, the Washington Court of Appeals found that all travel time for out of town travel, including travel time to the airport, time spent at the airport , flight time and travel time to out-of-town location – counts as compensable hours worked.18 The Court paid no attention to the fact that sometimes employees spent a lot of time on personal activities and, instead, showed deference to the Ministry’s unpublished interpretation that all the time travel “from the moment when the employee leaves his home until his arrival at his hotel in the other city, everything is compensable”, as well as “the moment from which the employee leaves the hotel[inthebackyarduntil’whentheycomehome[danslavillereculéejusqu’àcequ’ilsrentrentchezeux19 the Bags The ruling therefore requires employers to pay employees for trips from their home to an airport or similar location, even if this component of out-of-town trips requires less time than the employees’ normal commute. In addition, the Bags The ruling sets out a clear rule that out-of-town trips count as hours worked even though employees are able to use a significant portion of that travel time for personal activities.
Washington employers should consider the following:
- Policies: Employers should review and update their workplace employment policies and employee manuals. These documents must clearly and unequivocally state that (1) employees are required to report all hours worked and (2) the employer will compensate employees for all hours worked. In addition, employers should carefully consider how best to educate employees about the distinction between regular commute time and compensable commuting time. Employers can address these issues in general working time policies and manuals, in out-of-town travel guidelines, in company vehicle guidelines, or in internal human resources policies that allow contact with employees as needed.
- Practices: Determine if non-exempt employees need to travel out of town. While this can sometimes be important for business purposes, full door-to-door travel costs can be expensive and there may be other options (eg remote participation).
- Audits: Employers should periodically audit their records to ensure compliance with salary payment requirements, including travel time compensation requirements.
Either way, employers should carefully consider Anderson, Stevens, and Bags, as well as any available departmental policies or guidelines to determine whether the commuting and commuting time of their employees counts as compensable hours worked.
1 RCW 49.46.
2 495 P.3d 866 (2021).
3 WAC 296-126-002 (8).
4 DEPT. DU TRAVAIL ET DE L’INDUS., ES.C.2, HOURS WORKED, (July 19, 2021),
5 Username. to 3.
6 Username. to 2-3.
8 115 Wn. App. 452, 63 P.3d 134 (2003).
9 Username. at 454-56.
ten Username. to 454.
11 162 Wn.2d 42, 169 P.3d 473 (2007).
12 Username. at 45 years old.
13 Username. at 48 years old.
16 Username. at 49 years old.
17 495 P.3d 866 (2021).
18 Username. to 875.
19 Username. at 869. It should be noted that the Department’s guidelines to which the court showed deference were not available to the public. Username.