By Alan McEwen
There is really no clear or simple answer to the question of whether employers are required to pay staff for travel time. One reason is that there is such a wide variety of situations that can be described as employment-related travel.
Is this a question about the time spent on long-distance air travel? About the time spent travelling between customer locations? Or is this a question about travel to and from work in an employer’s vehicle?
Does it make any difference if the vehicle is required for an employee to do her job or to carry tools to the worksite? Does it make any difference if the vehicle is provided by the employee, rather than the employer? Does it make any difference if an employee first meets and then drives another employee to work?
In the end, all of these questions are about the definition of work. If we say an employer must pay for employee time, this is another way of saying the hours concerned were hours employees worked.
No employment standards jurisdiction in Canada has an all-inclusive definition of “work.” Many jurisdictions define it in terms of labour or services performed, but that still leaves us with having to decide when employment-related travel means performing labour or services on the employer’s behalf, which means we’re no further ahead.
Ontario has perhaps the most extensive definition of what work is, although most of these provisions deal with when work is recognized around meal breaks, time spent waiting for work and so on. None of these specific Ontario rules deal with what portion, if any, of employee time spent travelling is “work” and hence must be paid for.
The problem is not with the principle. Most people would probably agree that employee travel that primarily benefits the employer is paid working time. The problem is in the details — how this principle is applied in the wide variety of situations cited above.
For example, look at the simple act of commuting to work. Clearly, employers benefit when employees travel to work. Despite this, I don’t think there are many people who would argue that ordinary driving from home to work is time employers must pay for.
But where is the line between what most people would recognize as “personal” versus “work” travel? Is this line crossed when employees transport tools that are required in the performance of the job? Is the line crossed when an employee, at the employer’s request, picks up a fellow worker on the way to work?
The problem is there is very little in employment standards legislation that might provide guidance in helping to separate unpaid, personal travel from paid, work-related travel.
However, having said that, some employment standards aspects do help.
Some occupations that involve extensive work-related travel may be exempt from either or both of hours of work and overtime requirements. For example, in Alberta outside sales persons, paid at least partly by commission, are exempt from both hours of work and overtime employment standards. In other words, for these employees, whether their travel time is recognized as paid working time or not doesn’t really matter. In either case, it won’t likely affect their pay.
For some employees, paid on other than the basis of time, asking if travel time is paid time is really asking if the minimum wage has been met (so long as no overtime is involved). For example, in some cases bicycle couriers are paid a piece rate for each parcel delivered. I think most people would accept the time these couriers spend on their bicycles is paid working time. But if they are not compensated on an hourly or salaried basis, the only question that can be asked is whether the minimum wage has been met.
It’s also not clear that the Canada Revenue Agency (CRA) definition of personal travel, used to assess taxable benefits when the employer pays for personal use of an employer’s vehicle, has any bearing on what travel is recognized as work for employment standards purposes.
Given all of the above, the best advice for employers is to sort this out for themselves in conjunction with their employees. The terms and conditions of employment, as specified either in an offer/acceptance of employment, a collective agreement or a company policy incorporated into either of these should clearly define what, if any, portion of employee travel will be recognized as work and what compensation will be provided for any such work-related travel.
Alan McEwen is a payroll consultant and freelance writer with over 20 years' experience in all aspects of the industry. He can be reached at firstname.lastname@example.org, (905) 401-4052 or visit www.alanrmcewen.com for more information.