Whether an employee has to be paid for time spent traveling to an overnight destination on behalf of an employer under the Fair Labor Standards Act (FLSA) will depend on the time of day the employee travels and the mode of transportation used.
Employers should:
First, determine what time of day the employee is traveling.
If an employee is required to travel overnight for work all of the time spent traveling to and from the overnight destination during the employee’s regular business hours will be compensable, regardless of the mode of transport. The employee’s regular business hours include the hours during which the employee usually works, even on a day on which the employee does not usually work. Thus, if an employee normally works Monday through Friday, 9:00 A.M. to 5:00 P.M., but travels on a Saturday at 9:00 A.M., the travel time is during the employee’s regular business hours and is compensable. However, if the travel were to take place after Friday at 5:00 P.M., or on Saturday before 9:00 A.M., then the travel time would not be compensable (unless, as discussed next, the employee drives to the destination).
Second, determine what type of transportation the employee is using, and whether the employee is operating that mode of transportation.
If an employee is a passenger on a train, boat, bus, car or plane outside of working hours, then that time is not compensable. Of course, if an employee actually does work for the employer while a passenger—preparing for a meeting, for example—then the time becomes compensable. In that case though, the employee is being compensated for the work done, not for the travel.
One wrinkle to keep in mind is that the time an employee spends traveling between home and an airport, train, or bus station generally is not counted as hours worked, even if it is within the employee’s regular business hours. That time is considered non-compensable normal commuting time.
No matter what time of day and no matter whether it is within an employee’s regular business hours, any time that an employee spends driving to get to and return from an overnight business trip is considered compensable hours worked if the employee is operating the vehicle.
For any questions about this or any other wage and hour issue, please contact a member of our Employment Law Group.
