Question: If an employee is flying to another city for a meeting and coming back on the same day, does the travel time count as work time? That is, from leaving home early in the morning, waiting for the flight, taking the flight, taxiing to the site, taking the meeting and then coming back again — is that whole day “deemed work?”
Answer: According to regulation 285/01 of the Ontario Employment Standards Act, 2000, (ESA) recognized work time is when an employee is either actually performing work for the employer or not performing work but nonetheless required to stay at the workplace.
The three exceptions to this rule are eating periods, time in between shifts to sleep and when the employee is conducting her own private affairs over the course of the normal workday.
Two forms of travel time have been distinguished in the ESA as well as in court and labour arbitration decisions. The time an employee spends travelling to and from her normal work location to home each day is classified as “commuting time” and does not generally count as recognized work time.
Conversely, the second category of travel time — travel directed by the employer or in the course of employment — is considered to be time worked.
In other words, once an employee arrives at her workplace, any subsequent travel she conducts for her job up to the point where she leaves for home at the end of the day will equate to work time.
Out-of-town meetings are a unique form of the second category. A day dedicated to an out-of-town meeting lacks the normal commute time and concrete “workplace” that aids in the distinction.
Cases have instead held the entire day — including journeying to the airport, waiting and returning — to constitute one continuous work period until the employee has arrived back home.
Professional development conferences may seem less related to work than a client meeting, yet they too count as work time. The courts have reasoned that the travel is undertaken for the employer’s benefit.
In other words, did the employer direct the travel? Was the employee attending the conference at the request of supervisors or as part of an ongoing requirement to build professional development hours? Did the employer make the travel arrangements and encourage attendance at a professional conference?
Meal breaks, sleeping periods and rest times, however, will remain separate from work time, even when the travel time itself can be counted.
Thus, an employee’s journey to a client meeting, the meeting itself and the return time would be counted as work since it is at the behest of the employer; however, if the employee chooses to stop for dinner or lunch along the way, that would be treated as a normal, non-compensable break unless otherwise stipulated in an employment contract.
Contract, custom, practice
The Ontario ESA regulation also makes note of standards established by contract, custom or practice.
Therefore, it will be helpful for you to develop a clear policy with regards to professional development and whether overtime will be applicable on days that include travel.
This is particularly useful for occupations with high levels of mobility, such as sales, delivery and transport.
In the absence of specific workplace policies, adjudicators have made decisions on overtime and pay entitlements on the basis of employer practices of signing off on time that includes travel to various work locations, for example.
Set the bar early on with employees to avoid confusion.
Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at firstname.lastname@example.org. Stuart gratefully acknowledges the assistance of Richa Sandill, law student, in the preparation of this article.
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