The Portal-to-Portal Act: when commute time and before-shift tasks are not hours worked

Walking from the parking lot, commuting from home, or punching in after a drive is everyday work-life. Federal wage law does not automatically treat all of that time as hours worked. The Portal-to-Portal Act, in 29 U.S.C. 254, is the statute that limits an employer’s Fair Labor Standards Act liability for certain travel and preliminary or postliminary activities.

What section 254(a) takes off the clock

29 U.S.C. 254, relief from liability and punishment under the Portal-to-Portal Act is titled “Relief from liability and punishment under the Fair Labor Standards Act of 1938, the Walsh-Healey Act, and the Bacon-Davis Act for failure to pay minimum wage or overtime compensation.” Subsection (a) provides that, except as provided in subsection (b), no employer shall be subject to any liability or punishment under those laws on account of the failure to pay minimum wages or overtime compensation for or on account of any of the following activities of an employee:

• Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
• Activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

The same subsection then addresses employer-vehicle commuting: for purposes of the subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee’s principal activities if the use of such vehicle is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.

When a contract or custom puts the time back on the clock

Subsection (b) says that, notwithstanding subsection (a), the employer shall not be so relieved if the activity is compensable by either an express provision of a written or nonwritten contract in effect at the time of the activity, or a custom or practice in effect at the establishment covering such activity that is not inconsistent with such a contract. Subsection (c) limits that exception to the portion of the day with respect to which the activity is made compensable.

What this does not decide by itself

Section 254 does not say that every task before the official start time is unpaid. Activities that are part of the employee’s principal activity can still be hours worked under the FLSA. This article does not restate later court decisions about donning and doffing, security screening, or tool preparation. If your commute is ordinary travel from home, section 254(a) is the starting point. If you are required to do job work before you “start,” ask whether that work is a principal activity or is made compensable by contract or custom. This page is educational, not legal advice.