A recent call from one of my favorite clients prompted this post. His question:
I have non-exempt employees who travel internationally for business. They sit on the plane for a long time going to and from assignments. Do I have to pay them to watch in-flight movies?
It depends. And the factors on which it depends are really dumb.
As you are aware, the Fair Labor Standards Act (“FLSA” or the “Act”) requires virtually every employer to pay every employee (unless the employee falls under a specific exemption from the Act) at least minimum wage for all hours worked. It also requires that it pay non-exempt employees at least time-and-a-half his regular hourly rate for every hour worked in excess of 40 hours in a workweek. Some states (and municipalities) have similar wage-and-hour laws. For a refresher on FLSA basics, please look here: http://intownemployer.org/category/fair-labor-standards-act/
Under the FLSA, wages are owed whenever the employer “suffers or permits work.” This means that even if the employee does not have authorization to work (or to work overtime), the employer has to pay the applicable wage. Unauthorized work (and unauthorized overtime) is a disciplinary issue, not a wage-payment one. You can write-up or fire the worker for working more than he is supposed to, but you have to pay him for the services that he performs on the company’s behalf.
So it would seem, therefore, that if the boss tells the employee to leave the family, hop a plane, and fly to another city, this is akin to work and the employer should pay. But not so fast.
Pay for travel time for an employee who is exempt from the FLSA is easy – it’s included in his regularly salary and the Act does not entitle the exempt employee to any additional compensation for travel, irrespective of the time or nature of the travel.
For a salaried or hourly non-exempt employee, whether the travel-time is compensable depends on whether there is an overnight stay involved, and if so, whether the travel time cuts across the employee’s normal working hours.
When no overnight stay is involved, such as a when an employee takes a one-day assignment to another regional city, most of the time spent traveling to and from the other location is considered compensable. For instance, suppose an Atlanta-based non-exempt employee regularly works from 9:00 a.m. to 6:00 p.m. each day, with a 30-minute daily commute. If he is assigned to the firm’s Charlotte office for the day, leaves his home at 6:00, arrives in the Queen City at 10:00, works until 6:00, and arrives back home at 10:00, the travel is for the employer’s benefit and would be considered attendant to the principal activity the employer hired the employee to do. The travel time is compensable.
The employer, however, may deduct from the travel time the ½ hour the employee would normally spend commuting, as well as a regular mealtime (assuming the employee actually took a meal break). So, in the example above, the employee would receive compensation for 3.5 of the 4 hour commute to Charlotte, 7 of the 8 hours in the Charlotte office (assuming an hour for lunch), and 3.5 of the 4 hours for the commute back home – a total of 14 compensable hours for the day.
On the other hand, “Travel away from home” is defined by the Department of Labor as travel that keeps an employee away from home overnight. Travel away from home is compensable only with it cuts across the employee’s normal working hours (even if on a nonworking day).
For example, our Atlanta-based employee is sent to Charlotte via public transportation (plane, train, or bus) for a one-night, two-day trip. His flight on the first day leaves at 7:30 a.m. and he arrives in Charlotte at 8:30 a.m. This travel, because it fell outside of the normal working hours, would not be compensable. He works in Charlotte from 9:00 a.m. to 6:00 with an hour lunch. This working time, minus the meal break, is compensable. The employee had 8 compensable hours for Day One.
After spending the night in Charlotte, he reports back to the office at 9:00 a.m. and (less an hour for lunch) works until 4:00 p.m., when he leaves the office to catch his 5:00 flight. He arrives back in Atlanta at 6:00 p.m. All of the working time, including the drive to the airport from the office and the hour flight to Atlanta, would be compensable because it all of it cut across the normal work hours. The employee again had 8 compensable hours for Day Two.
So, applying this simple (ahem) calculus to my client’s question: If the international flight leaves after the employee’s normal working hours and arrives before the next day’s working hours begin, it is likely not compensable. (Time spent working on the plane, of course, is compensable). But if the flight leaves in the middle of the morning or afternoon (even on a Saturday or Sunday) or arrives after normal working hours begin (even on a Saturday or Sunday), the time spent traveling during the normal working hours is compensable, whether or not the employee is working on the plane.
As these examples show, it is not always intuitive as to when travel time is compensable. Also remember that there are different rules if the employer requires the employee to drive his personal vehicle, if there is a rental car, or if the employee elects to drive instead of taking public transportation.
Please be careful. Wage-and-hour suits are ever increasing and improper compensation practices can hide in the weeds for years. Give me a call if you don’t want to muddle through all of this. We’ll work it out together. ts