Don’t Get Tripped up by Travel Time Pay
Travel pay and compliance with the Fair Labor Standards Act (FLSA) for non-exempt hourly employees is a confusing subject for most employers and for good reason. While most questions require a fact-specific inquiry and the application of the rules can produce some strange conclusions, here are some basics to keep in mind when formulating a travel pay policy:
1. Commute Time is not Compensable
You probably already knew this. Generally, travel to and from the employee’s residence to the employer’s work site is not compensable. This is true even if the employee is required to travel to a different work site in the same area as her usual work site or if the employee does not have a regular work site and visits a different employer work sites each day, even if the commute time is long. Of course, there are exceptions:
Exception Example: Employer, Red Umbrella Technologies requires Ellie, an hourly employee, to perform work during her commute. For purposes of this example, Ellie commutes via train and her employer requires her to provide updates to its online file database and provide her supervisor at Red Umbrella with a list of those potential clients she plans on visiting the next day. Under these circumstances, Ellie’s commute would become compensable.
Exception: JEN-V Bio Defense requires employee, Kala, to report to an employer dictated central location to receive instructions or pick up equipment before driving to a job site to perform work for JEN-V. In this case, the travel time from the central location to the job site would be compensable.
2. Travel for One-Day Assignments Outside of the Employee’s Regular Territory or Job Site is Compensable
When an employee who usually works at one job site or a number of job sites within a specific territory are given a special one-day assignment that requires him to travel to a job site in a different territory, all the travel time outside the regular work day to get there and back, counts as time worked. The only time that is not compensable would be meal breaks in which no work is performed and the time spent traveling between the employee’s home and the point of departure.
Example: Harold, an employee, usually works at Puppet Pizza’s location in Drachedge County. His employer gives him a special, one-day assignment that requires him to perform work at the employer’s job site in Morburn County. The employee usually works Monday through Friday from 11:00 p.m. to 7:00 a.m. and takes a one hour lunch break. Harold’s point of departure is Puppet Pizza’s location in Drachedge. His travel to the employer’s location in Moburn County on the day of the special assignment requires him to work an extra four hours outside of her regular work hours, as he must leave the point of departure at 9:00 p.m. and does not return to his original point of departure until 9:00 a.m. that evening. Puppet Pizza must compensate Harold for the extra four hours worked as a result of his travel to and from the employer’s location in Moburn County. Further, to the extent that the additional four (4) hours traveled results in Harold working over forty (40) hours in any given weekly period (the work week is a seven (7) day period defined by the employer, for example, Monday through Sunday), he would be entitled to overtime pay (time and a half) for any hours worked in excess of forty (40) hours in work week in question.
3. Sleepovers are Strange
When travel keeps an employee away from home overnight, it is considered travel away from home. The normal waiting time at the travel hub (bus stop, train station, airport) that precedes the travel time provided by a common carrier will be approved at 2 hours for domestic travel and 3 hours for international travel at the straight time rate. The general rule is that if an employee travels outside of her regular working hours and outside of her home area at the employer’s direction and for purposes of the employer’s business, this time would be compensable under FLSA. The exception to this rule is when the employee travels by common carrier or otherwise as a passenger and does not perform work during such time. For example, if your employee’s duties require her to drive from one location to another outside her regular working hours, she must be compensated for all travel time. However, if the employee travels as a passenger in a motor vehicle or a common carrier (i.e. plane, train, bus, boat), you are not required to pay her for travel time, even outside normal working hours, unless she is performing business-related activities while traveling. The theory behind this rule is that traveling as a passenger allows the employee time to engage in personal interests, which is a primary element used by the Department of Labor to determine if an activity is compensable or not compensable under FLSA.
Example:
The 813 Paranormal Special Investigators has a crew that is assigned to work at an out-of-town assignment requiring the crew to be out of town for several weeks. For purposes of this example, we will assume usual work hours are 9:00 p.m. to 6:00 a.m., Tuesday through Saturday. The crew will be driving to the out-of-town assignment in a company van that leaves 6:00 p.m. on Monday, and the drive to the investigation site will take five (5) hours. So, the passenger employees in the company van should be paid for the time spent traveling from 9:00 p.m. to 11:00 p.m. on Monday because these hours fall within the 813 Paranormal’s work hours (even though it is a Monday). The time spent traveling as a passenger from 6:00 p.m. to 9:00 p.m. is not compensable. But the entire drive is compensable for Nik, the driver assigned the task of driving the crew to the work site, even the time that does not occur within Nik’s regular working hours. Assuming that Nik is driving the vehicle at the direction of the employer, the employer may establish a different rate for driving than the Nik’s normal rate of pay. Thus, if Nic is usually paid $20.00 per hour, 813 Paranormal could establish a driving rate of $10.00 per hour in an attempt to reduce the cost for paid driving time. There are a couple of caveats here: (1) the driving rate must be at least the minimum wage; and (2) if employer choses to establish a different driving rate, it will need to remember that both driving time and other time must be counted when determining overtime hours and overtime will need to be computed on the weighted average rate.
Please keep in mind constructing a travel pay policy for a nonexempt hourly employee requires a detailed, fact-specific inquiry. The tips and examples above are simply illustrations of some common issues that may arise in developing a travel pay policy that complies with the FLSA. Although Florida does not have any additional law addressing the issue, other states may have more restrictive laws regulating travel pay.
This article provides general information and is not legal advice or opinions on specific facts. For specific questions please contact us.