42 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP b. Overnight Travel When travel keeps an employee away from home overnight, only a certain portion of the time spent out of town will be compensable. All travel time that occurs during an employee’s regular workday is “clearly worktime” because “[t]he employee is simply substituting travel for other duties.”253 This rule is applicable not only to the employee’s regular working days, but also to the corresponding hours on non-working days. Therefore, “if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday,” travel time during those hours on the employee’s non-working days (Saturday and Sunday) will be considered working time for which the employee must be compensated.254 The DOL has stated that with respect to enforcing the travel time regulations, it “will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.”255 Massachusetts regulations explicitly adopt the DOL’s position.256 Therefore, employers need not compensate employees for time spent traveling outside of their regular working hours when the employees are away from home for at least one overnight. If, however, an employee is required to do work while traveling, all time spent performing the work must be compensated.257 Employers are not obligated to pay employees for a regular meal period during overnight travel.258 c. Travel in a Company Vehicle In most circumstances, travel in a company-provided vehicle does not transform ordinary commuting time into compensable working time. Thus, an employer is not required to compensate an employee who uses a company vehicle for ordinary commuting time, provided that (1) the vehicle is not more difficult to operate than a vehicle normally used for commuting; (2) “the employee incurs no out-of-pocket expenses for driving, parking, or otherwise maintaining” the vehicle; (3) the “travel is within the normal commuting area for the employer’s business”; and (4) the use of the vehicle is subject to an agreement between the employer and employee explicitly stating that ordinary commuting time is not compensable.259 253 29 C.F.R. § 785.39; 454 C.M.R. § 27.04(4)(e) (applying requirements of 29 C.F.R. § 785.39 to overnight travel). 254 29 C.F.R. § 785.39. See also DLS Opinion Letter MW-2002-012 (Apr. 17, 2002). 255 29 C.F.R. § 785.39. 256 454 C.M.R. § 27.04(4)(e) (adopting provisions of 29 C.F.R. § 785.39). 257 29 C.F.R. § 785.41. 258 29 C.F.R. § 785.39. 259 DLS Opinion Letter MW-2007-001 (June 19, 2007) (citing guidelines from the Employee Commuting Flexibility Act of 1996). The DLS has opined that where these requirements are met, activities performed by the employee that are incidental to the use of the vehicle for commuting do not affect the non-compensability of the travel time. For example, where an employee services electronic equipment at customers’ facilities and travels to work sites in a company van equipped with parts and tools, the fact that the employee may place calls to the company dispatcher before traveling to the work site and on occasion may load new parts into the van does not make travel time compensable. DLS Opinion Letter MW-2003-006 (May 16, 2003).
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