Quiz question: In the following scenario, for what does your assistant get
You take your non-exempt assistant with you on a weekend business trip. You
fly on Saturday—it takes an hour to get to the airport, the takeoff time
is 7:00 a.m., you have a layover, and you finally arrive at your destination
at 6:00 p.m. Sunday is spent working from 9:00 a.m. until 2:00 p.m. (with a
working lunch), and you fly back that same day on a flight that leaves at 2:30
p.m. and arrives home at 8:00 p.m. Normal work hours for your assistant are
8:30 a.m. until 5:00 p.m. with 1/2 hour for lunch Monday through Friday, and
his usual commute time to work is 15 minutes each way.
Answer: Under federal law, the assistant must be paid for the travel time on
Saturday that falls within regular working hours of 8:30 a.m. to 5:00 p.m. with
a 1/2 hour deduction for normal mealtime, but not for the hours spent traveling
outside of normal work hours or for the extra commute time (unless that time
were actually spent working). On Sunday, the assistant must be paid for the
all the time spent working from 9:00 a.m until 2:00 p.m., including the working
lunch, and for the travel time that falls during normal working hours of 2:30
p.m. to 5:00 p.m.
If the weekend trip was in addition to a 40-hour workweek, all the paid time
during the weekend must be paid as overtime under federal law.
Now that’s just federal law. Your state law may follow federal law, or
may deviate from federal requirements, so it is important to check with state
enforcement authorities in your particular state and follow the law most beneficial
Thoroughly confused? Most professionals think wage and hour law is simple,
until they start getting asked questions like the one above. Below is a primer.
Expect some surprises.
‘Hours worked’ principles
Whether an employer must pay non-exempt employees straight or overtime pay
for time spent doing activities which may benefit the employer depends on the
calculation of "hours worked" under the requirements of the federal
Fair Labor Standards Act (FLSA) and state wage and hour laws.
First, some general principles. Under the FLSA, employees who are "suffered"
or "permitted" to work, even if not specifically instructed to do
so, must be paid for the work time. For example, an employee who stays late
or works overtime to finish a project or task, or an employee who stays at her
desk during lunch to answer the phone, must be paid for the time if the employer
knew or had reason to know the employee was working, even if the work time was
not specifically authorized. And it is not enough for employers simply to have
a policy against overtime; management must enforce the policy and ensure that
overtime work is not performed. Therefore, if an employee violates an overtime
policy, the employer may discipline the employee but nevertheless must pay for
the overtime worked.
Non-exempt travel time
Determining whether travel time by a non-exempt employee counts as "hours
worked" under the FLSA depends on the type of travel.
An employee does not have to be paid for normal commuting travel from his or
her home to work, whether to a fixed location or different job sites.
Employees who have gone home after finishing a day's work, and who are called
by the employer at night to perform an emergency job at a customer's location,
must be paid for all time spent traveling. The U.S. Department of Labor's (DOL)
Wage and Hour Division takes no position on whether employees who are called
back to their regular work site must be paid for their travel time.
Travel during work day
Travel that is part of the employee's daily job tasks, such as travel from
one job site to another during the workday for meetings or to pick up tools
or materials, is compensable work time regardless of contract, custom or practice.
One-day travel to another city
All time spent traveling on one-day, out-of-town work assignments must be counted
as "hours worked." Federal regulations state that such travel is for
the employer's benefit and at the employer's request, and should be compensated.
Deductions may be made, however, for meal times and for time spent traveling
between the employee's home and a train station or airport.
Overnight travel away
If an employee is required to travel away from home and stay overnight, travel
time during the employee's normal workday must be counted as hours worked, not
only for normal workdays but also on weekends or non-workdays. For example,
if an employee's normal work hours are 9 a.m. to 5 p.m. Monday through Friday,
and the employee is required to travel on Saturday out of town and stay overnight,
the employee must be paid for all travel time between 9 a.m. to 5 p.m. on Saturday
(with deductions for meal time).
Outside regular hours
DOL takes the position that it will not consider time spent traveling outside
of regular working hours as compensable work time, for example, if the employee
in the above example traveled from 9 a.m. until 6 p.m., the employee need not
be paid for the time spent traveling between 5 p.m. and 6 p.m. because it would
be outside of regular working hours. However, if the employee was working while
traveling during the extra hour (e.g., reading work materials or on a laptop
computer), this time would be compensable work time.
Use of private automobile
If an employee is offered public transportation for travel away from home,
but chooses to drive his/her car instead, the employer may count as hours worked
either: (1) time spent driving the car, or (2) the time the employee would have
had to count as hours worked during working hours if the employee had used public
State wage and hour laws
Although many state wage and hour laws are essentially similar to federal requirements,
or are interpreted consistently with federal law, it is important for employers
to check with state enforcement agencies to determine whether your particular
state has requirements different from federal law. For example, California requires
certain industries to pay employees overtime for hours in excess of eight hours
per day, and double-time for hours worked in excess of 12 hours per day or on
the seventh day of the workweek (typically Sunday). As a basic rule of thumb,
therefore, follow whatever interpretation is the most beneficial to employees,
whether federal or state, in order to be in full compliance with both federal
and state requirements.
When determining whether em-employees must be paid straight or overtime pay
for time spent traveling, training, or doing other activities required by the
job or potentially beneficial to the employer, rely on the definition of "hours
worked" under federal and state law.
Check with labor counsel and/or federal or state enforcement agencies if you
have questions (e.g., the Wage and Hour Division of the DOL is the federal enforcement
agency and has local offices throughout the country).
Employers, of course, may be more generous to employees than federal or state
law requires, assuming all similarly situated non-exempt employees are treated
Reprinted from the "HR Managers Legal Reporter" with permission of
the publisher, Ransom & Benjamin Publishers LLC.