I am away this week. Since I am traveling I was reminded that air travel may be more difficult to deal with under the new FLSA regulations. You may have employees who traveled as exempt employees who will now be reclassified as non-exempt employees. The rules for paying them become more complicated, you had better know the rules.
As I am teaching a class or consulting with a client I usually get looks of disbelief and bulging neck veins when I talk about travel time and how it is covered by the Fair Labor Standards Act. As the title of this post implies travel time for exempt employees is NOT anything special. But when you are having a non-exempt employee travel it becomes a big deal. So lets cover travel time for non-exempt employees so you have a clear understanding of it.
Whether travel time is compensable depends upon the type of travel involved.
- Normal commute time is NOT compensable. Driving to work and driving home from work is not time that needs to be paid for by the employer.
- If you send an employee off to another city that requires a drive, for example, going from Atlanta, Georgia to Birmingham, Alabama, which takes 2.5 hours then compensable time may be involved. The drive to and from is compensable, aka working time. However, the employer may deduct from that the normal amount of time the employee would normally be commuting to work. Thus, if the employee normally spend 30 minutes driving to and from work, then 1 hour may be deducted from the 5 hours of driving time that is spent on that one day assignment. So in this example 4 hours of drive time is compensable and must be added to the amount of time spent working in Birmingham.
- If you have an employee who normally drives throughout the day then that driving becomes compensable as they go from location to location, even though they may not be performing any “work” during that drive time. If the employee does not report to a central office, but calls-in to find out where they are supposed to report, the initial drive to that location is considered normal commute and thus is not compensable. Their drive home from the last location is also considered a normal commute. Of course if either going to work or leaving at the end of the day, if they are required to report to a central office, the drive to that office is considered “work” and thus has to be paid.
- If you put a non-exempt employee on an airplane it becomes a little weird. The rule is basically this: if they are traveling during their “normal work hours”, e.g. 8 am to 5 pm, they have to be paid, even if the travel is NOT a normal workday. If they are a passenger on an airplane (or train, or boat, etc. ) during NON-WORKING hours then they DO NOT have to be paid. So, if you need someone to be in Chicago, and they are flying from Atlanta, and they need to be in Chicago first thing you might send them the night before. If they normally work 8 am to 5 pm and you put them on a plane at 6 pm then the time they are spending as a passenger is not compensable. If you put them on the plane at 4 pm, then 1 hour becomes compensable. However, if they perform any work during that flight, regardless of the time, then they have to be compensated for the time.
Of course the FLSA sets the minimum standard you have to abide by. You can pay for extra time if you want. For example, if you put the person on the plane at 6 pm, you may still pay them for the time it takes to get to their destination. Or, in the drive to Birmingham you may opt not to deduct for the “normal” commute time. It is up to you to decide how “generous” you want to be, you just have to make sure you are meeting the minimum standards defined by the FLSA. Development of a clear policy that is clearyl communicated to employees is important.
As with many areas of the FLSA, there are many exceptions that have come about as the result of special interests and “opinions” that have been developed. So you need to make sure whether or not you have some special case.
And in case you have not figured it out I am NOT a lawyer. So don’t take anything written above as legal advice. But it is what the USDOL said in its FACT SHEET #22. So you can check it out by clicking on the link.