By Cathy Allen, SPHR
How should a non-exempt employee be paid for travel time? This is a question that comes up often, and I’ve found that many employers aren’t compensating their non-exempt employees correctly for travel time.
The Fair Labor Standards Act (FLSA) regulations, CFR 785.33-41, define when travel time for non-exempt employees is considered hours worked. Whether or not the time spent in travel is considered as working time depends upon the kind of travel involved. The regulations can be a little confusing, so let’s start with the easy stuff first.
Home to Work – Ordinary Situation
An employee who travels from home before the regular workday and returns to his or her home at the end of the workday is engaged in normal home to work travel. This time is not “working time”, and is not compensable.
Home to Work – Special One Day Assignment in Another City
An employee who is asked to travel to another city to work, but does not spend the night, should be paid for all time spent traveling. However, the employee does not need to be paid for the usual meal time. In addition, the usual travel time from home to work and back may be deducted from the time spent traveling to and from the other city. For example, if the employee normally travels 15 minutes to the office, and then 15 minutes traveling back home, a total of 30 minutes may be deducted from the time spent traveling on the one day assignment to and from another city.
Travel – All in a Day’s Work
Time spent by an employee traveling as part of his/her normal work activities during the work day, e.g., from job site to job site must be counted as time worked.
If an employee is required to report at a designated place (such as the home office) to get instructions, pick up tools, etc. prior to reporting to a work site, then time spent traveling to the designated place, e.g. home office, is not travel time. However, the time spent traveling from the designated place to the work site is part of the day’s work, and is compensable.
Travel Overnight – Away from Home
This is where it gets tricky. Travel away from home is working time when it cuts across the employee’s normal workday working hours, and during the corresponding hours on non-working days. Therefore, if an employee normally works 8am to 5pm Monday through Friday, any time spent traveling during these hours is considered work time, as well as time spent traveling between 8am and 5pm on normal non-working days( Saturday and Sunday). A regular meal period is not counted as hours worked.
Note that unless the employee is working while traveling, time spent traveling as a passenger outside of normal working hours is not considered work time, and is not compensable.
If the employee is performing work while traveling as a passenger, even outside the normal work hours, that time spent working is compensable. Therefore, if the employee is making business calls, checking work emails, etc., it is considered time worked and is compensable.
An employee who drives a truck, bus, automobile, boat or airplane (or an employee who is required to ride therein as an assistant or helper to the driver) is working while riding, except during bona fide meal periods, and must be compensated for all hours spent operating a mode of transportation, such as a vehicle.
Let’s look at a scenario involving two non-exempt employees that are traveling.
Carli is traveling as a passenger with her co-worker Melissa, who is driving a car to a hotel where they will attend a conference for the next two days. Carli and Melissa normally work 8am to 5pm. They leave at 2pm and arrive at the hotel at 7pm. Two hours of travel time (5pm to 7pm) is outside of their normal work hours.
Situation 1: Melissa is driving the vehicle, so all time she spends driving, even after 5pm, is compensable.
Situation 2: Carli is a passenger, and is not performing any work in the car. Therefore, Carli does not have to be paid for the time spent traveling after 5pm.
Situation 3: Although Carli is a passenger, she is working on a report the entire time she is traveling, so she must be paid for all of the time spent traveling.
Situation 3: Melissa and Carli stop to eat from 5:30 – 6pm. Neither Melissa nor Carli have to be paid for the bona-fide meal period.
As you can see, ensuring that non-exempt employees are properly compensated for travel time can get confusing. The regulations on travel time (CFR 785.33 – 785.41) and other information pertaining to the Fair labor Standards Act are available on the federal Department of Labor web site at www.dol.gov
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