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We’ve compiled a list of the 100 most commonly asked questions we have received on the federal Fair Labor Standards Act (FLSA) overtime regulations.
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This report, "Top 100 FLSA Q&As", is designed to provide you with an examination of the federal FLSA overtime regulations in Q&A format, including valuable tips for bringing your workplace into compliance in an affordable manner.

At the end of the report, you will find a list of state resources on wage and hour issues. This report includes practical advice on topics such as:
  • FLSA Coverage: How FLSA regulations apply to all employers and any specific exemptions from the overtime requirements
  • Salary Level: Qualifying for exemptions and nonexempt employees
  • Deductions from Pay: Deducting for violations, disciplinary reasons, sick leave, or personal leave


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February 02, 2003
Calculating Travel Time Pay for Non-exempt Employees
Quiz question: In the following scenario, for what does your assistant get paid?

For a Limited Time receive a FREE Compensation Special Report on the "Top 100 FLSA Q&As," designed to provide you with an examination of the federal FLSA Overtime Regulations in Q&A format, including valuable tips for FLSA Coverage, Salary Level, and Deductions from Pay. Download Now

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 to employees.

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 transportation.

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.

Conclusion

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 the same.

Reprinted from the "HR Managers Legal Reporter" with permission of the publisher, Ransom & Benjamin Publishers LLC.

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