Travel Time: When you must pay employees.

As we know, employers must be mindful that all “time worked”, as defined by the FLSA and other State and more local regulating bodies, must be accounted for and paid when it comes to Non-Exempt employees (those employees NOT exempt from the requirement to be paid overtime). When it comes to time traveling, there are many rules about when the time is considered “compensable” according to the FLSA and needs to be recorded and paid in an employee’s regular weekly wages. Below is a guide to how this works. Note, the details below reflect Federal rules, which NYS also observes. Other states may have other requirements.

Overnight, Out-of-Town Trips

For overnight, out-of-town trips, non-exempt employees must be compensated for time spent traveling (except for meal periods) during their normal working hours, on days they are scheduled to work and on unscheduled workdays. Non-exempt employees must also be paid for any time spent performing job duties during otherwise non-compensable travel time.

Further explanation when overnight travel falls within normal work hours:  If an employee normally works 8A-5P, and the time they are traveling falls within this time, they will need to be paid for that time. This includes non-typical workdays, where traveling occurs within an employee’s normal hours range in a day (i.e. Saturday and Sundays even if the employee normally works Monday-Friday). If flying, this does not include the trip to or from the airport/hotel/etc. as time spent traveling to or from an airport terminal is considered commute time and is not treated as hours worked. The time spent waiting at the terminal until arrival at the destination is compensable when it falls during normal work hours, so if it is outside the 8A-5P it is not paid, but if it's within, it needs to be paid.

• For example, if Shelly normally works Monday through Friday, 8:30 a.m. to 5 p.m., and she is required to travel by plane on a Sunday for business in another state, her travel time on Sunday between 8:30 a.m. and 5 p.m. is compensable.

• If Shelly arrives at the airport on Sunday at 3 p.m. and at her destination at 8 p.m., the employer is required to pay her only from 3 p.m. to 5 p.m., the hours that correspond with her normally scheduled work hours.

Driving at the direction of the employer

When employees are required to drive themselves or others, all driving time is compensable. This means that regardless of the time it occurs, time spent actually driving (not to include riding as a passenger in the car, and not including "commute time"), is time that should always be counted as hours worked and paid.

Work performed while traveling

An employee must be paid for any time he or she is performing work. This includes time spent working during travel as a passenger that would otherwise be non-compensable. This means if employees complete work while at the airport, while riding in a vehicle, etc. even outside their normal hours, that time would have to be paid. This makes sense since we would want someone to record their time and be paid any time they work otherwise (weekend, nighttime, etc.). Employers should set clear expectations about whether or not extra time worked will be permitted during these times, the same with other overtime mitigation constraints.

·       For example, Shelly normally works Monday through Friday, 8:30 a.m. to 5 p.m. She arrives at the airport on Sunday at 3 p.m. and at her destination at 8 p.m. Generally, the employer is required to pay her only from 3 p.m. to 5 p.m.; however, if Shelly works on a presentation during her flight until 6:30 p.m., her employer will need to pay her from 3 p.m. to 6:30 p.m.

Out-of-Town Trips for One Day

Non-exempt employees who travel out of town for a one-day assignment (and return home within the same day) must be paid for all travel time, excluding regular commute time to work and meal periods.

Local Travel

Non-exempt employees must be compensated for time spent traveling from one job site to another job site during a workday. The trip home, however, is non-compensable when the employee goes directly home from the final job site. In unusual circumstances where the regular commute home from the regular worksite is unusually long, the portion of the trip home more than the regular commute is compensable.

Commuting Time

Under the Portal-to-Portal Act, travel from home to work and from work to home is non- compensable. However, if a non-exempt employee regularly reports to a worksite near their home but is required to report to a worksite farther away than the regular worksite, the additional time spent traveling is compensable.