Are Your Non-Exempt Employees Being Compensated Correctly For Travel Time?

By:   Jordan Schwartz

Like many attorneys, I spend a significant amount of time traveling, whether it is to meet with clients, take depositions, or conduct training sessions. Business-related travel certainly is not unique to the legal industry. In fact, more and more employees in other industries, including the hospitality industry, are spending a greater amount of time traveling for work than ever before. Such travel typically includes attending out-of-state trade shows, recruiting visits, job fairs, and sales calls. As an exempt employee, compensation for travel time is cut and dry – an employee simply continues to receive his or her salary. For non-exempt employees, however, determining proper travel-time compensation is not nearly as straightforward.

The Fair Labor Standards Act (“FLSA”) governs the payment of wages, and requires that employees be compensated for all work performed. Yet, two common questions surface routinely concerning the compensability of travel time:

(1)   Is a non-exempt employee’s travel time for business-related events, whether as a passenger on an airplane, train, boat, bus, or automobile, compensable?; and

(2)   If so, and as a result the travel takes them over 40 hours in a workweek, must that employee be paid overtime for those additional hours?

The answer, as is often the case in the legal profession, is “it depends.” Under the FLSA, time spent traveling during normal work hours is considered work time. Therefore, since a non-exempt employee is essentially substituting travel for other duties he or she would have been performing, that employee must be paid for travel time occurring during his or her normal work hours. The employee is not, however, entitled to be paid for time traveling outside of regular working hours. Thus, if an employer requires an employee who typically works from 9:00 am to 5:00 pm Monday through Friday to travel to a conference and such travel occurs on Wednesday from 3:00 pm to 7:00 pm, the employer is only required to pay the employee for a typical eight hour day ending at 5:00 pm. Because the additional two hours of travel are not “working time,” no additional pay (and thus no overtime) would be required. 

Where this gets confusing, however, is that an employee’s “normal working hours” also applies to corresponding hours on weekends or other non-working days. Thus, if the same hypothetical employee is required to travel back home on Saturday from 3:00 pm to 7:00 pm, he or she must be compensated for two additional hours (corresponding to 3:00 pm to 5:00 pm), even though that employee would not otherwise have been required to work on a Saturday. Assuming that employee had already worked a full 40-hour workweek, he or she would thus be entitled to overtime for these additional two hours. 

There are several other important issues employers should keep in mind regarding travel time:

·         Employees are not entitled to be paid just for the time they are “in the air” on a flight. Rather, time spent in the airport on layovers also constitutes travel time. 

·         Generally, travel time on work-related day trips is counted as time worked, except for meal times, which may be deducted.

·         Typically, time spent commuting is not work time. Just as employees are not compensated for the time it takes to drive to and from work on a typical non-traveling work day, the time spent commuting to and from the airport or train station does not constitute work time. Rather, the work time would start when the employee arrived at the airport, train or bus station.

In this day and age, with business travel becoming the norm as opposed to the exception, it is essential for hospitality employers to recognize and be aware of these rules relating to travel time. Indeed, it would be a shame if an employee’s otherwise productive business-related trip resulted in a major expense due to non-compliance with the FLSA. 

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