Traveling Merchandisers and Overtime: Drive Time, Unpaid Overtime

Traveling Merchandisers and Overtime: Drive Time, Store Visits, and Unpaid Reporting

Traveling merchandisers stock shelves, build seasonal displays, run resets, rotate product, and audit planograms in grocery stores, drug stores, big-box retailers, convenience stores, and auto parts chains. Most of them work for third-party merchandising and marketing companies rather than for the retailer whose shelves they service, and a single route may cover four, six, or ten stores in a day across a wide territory. Pay comes in several forms: an hourly rate, a flat amount per store, a fixed amount per project, or a 1099 arrangement that treats the worker as an independent contractor. None of those pay structures removes the employer's obligation under the Fair Labor Standards Act to pay for all hours worked and to pay overtime for hours over 40 in a workweek.

The biggest source of unpaid time on a merchandising route is drive time. Travel from one store to the next during the workday is part of the workday and must be counted as hours worked. The ordinary commute from home to the first store of the day and from the last store back home is generally not compensable. But that ordinary-commute rule is narrower than employers often assume. When a merchandiser loads product, fixtures, signage, or tools at home, picks up materials at a warehouse or storage unit, or downloads and reviews the day's assignments before leaving, the workday may begin with that first task. Travel that follows is then travel during the workday, not a commute, and it must be paid.

Per-store and per-project pay create a second problem. A worker paid a set amount for each store serviced is being paid by a method of calculating wages, not exempted from overtime. The overtime calculation starts with the regular rate, which is total pay for the week divided by total hours actually worked. For each hour over 40, the employer owes an additional one-half of that regular rate. Because the per-store rate covers only the time the employer assumes a store should take, this structure routinely undercounts hours. A worker who is paid for a 45-minute store visit but who spends 80 minutes on a reset has 35 minutes of unpaid work that still counts toward the 40-hour threshold and toward the regular rate.

Merchandising work also generates a steady stream of small tasks outside the store that often go unrecorded. Checking in and out of a mobile app. Photographing a completed display and uploading the images. Filling out store surveys, damage reports, and compliance forms. Answering calls and texts from a supervisor about route changes. Reconciling product counts at the end of the day. Each of these tasks is work performed for the employer's benefit, and each must be paid. When a company pays only for scheduled in-store time and treats reporting as something the worker does on personal time, the uncounted minutes accumulate quickly across a five-day or six-day route.

Many merchandisers are also classified as independent contractors, and that classification deserves scrutiny. The label on the paperwork does not decide the question. Courts look at the economic reality of the relationship, including how much control the company exercises over the work, the worker's opportunity for profit or loss based on managerial skill, the worker's investment in equipment, whether the work requires special skill, how permanent the relationship is, and how integral the work is to the company's business. A merchandiser who is assigned a fixed route, told which stores to visit and in what order, required to use the company's app and follow the company's planograms, and given no real ability to increase earnings except by working more hours has strong facts pointing toward employee status.

Employers are required to keep accurate records of the hours their employees work. When a company does not track actual route time, workers can help themselves by keeping their own contemporaneous notes: start and stop times at each store, odometer readings or mileage between stops, time spent on app check-ins and photo uploads, and any work done before leaving home or after returning. Screenshots of app timestamps and copies of route assignments are useful for the same reason.

Workers in similar situations may have legal rights under the FLSA. Unpaid overtime and minimum wage claims are generally subject to a two-year statute of limitations, and three years if the employer's conduct was willful. Time limits apply.