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<!–:en–>PAYING NON-EXEMPT WORKERS FOR BUSINESS TRAVEL<!–:–>

October 24, 2011

It’s generally easy to determine how to pay non-exempt workers and any employer normally has little problem with this. That is when they are on the employer’s worksite, are on duty and subject to the employer’s control. However, questions frequently come up about how to pay a non-exempt worker when they travel for work. Here are some basic points to remember under federal law for non-exempt travel time.

Overnight Travel. When employees are required to take a trip by car, plane, train or any public transportation that keeps them away from home overnight, the Department of Labor considers that all time spent traveling during the hours corresponding to an employee’s normal working hours must be counted as time worked. Travel hours on Saturdays, Sundays and holidays that match up to an employee’s normal working hours on other days of the week also must be counted as time worked. However, meal periods may be excluded. The Department of Labor’s Wage-Hour Division says that, as an enforcement policy, it will not treat as compensable hours the time that an employee spends traveling “away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, etc. Also, when an employee travels between two or more time zones, the time zone associated with the point of departure should be used to determine whether the travel falls within the normal work hours.

Day Trips. What about when an employee is given a one-day work assignment that requires the employee to travel to another city. Basically, all the travel time involved with a day trip counts as time worked. The only amounts of time that can be excluded are meal periods and the time spent traveling between the employee’s home and the point of departure (e.g., airport).

Travel Between Work Locations. Once employees start their workday, all time spent traveling as part of their main activities must be counted as hours worked. Where an employee’s job involves traveling from one workplace to another after reporting for the day’s work, the travel time must be counted as hours worked.

Travel Between Home & Work. Travel from home to work and returning home at the end of a work day generally does not count as hours worked. However, activities such as work-related phone calls and picking up supplies are compensable.

Driving on Behalf of the Employer. With the exception of commuting between home and work, driving a vehicle on behalf of an employer is compensable regardless of whether the travel takes place within or outside normal work hours. The act of driving is considered a manual labor activity which needs to be counted as hours worked.

Attending Social Events & Meetings for Employer. If an employee is required to attend meals or social events for an employer, the time is counted as hours worked.

Performing Work While in Travel Mode.  Any time that an employee spends working while traveling such as answering emails, taking business phone calls, etc. is counted as hours worked. In addition, if an employee is required to ride as an assistant or helper in an automobile, the travel time counts as hours worked.

Non-Compensable Periods. The following do not count toward hours worked: (a) regular meal periods; (b) riding as a passenger outside normal work hours, via airplane, train, boat, bus, automobile, etc.; (c) time spent sleeping; (d) time spent waiting at the airport outside of normal work hours; (e) travel between home and work or between hotel and worksite, and (f) The extra time it takes to travel when an employee decides to drive a car versus when flying is authorized and available. The authorized and available flying mode, however, is counted.

California Rule for Non-Exempt Travel. Whereas under federal law, an employer is not obligated to pay for a non-exempt employee’s hours spent traveling outside of regular work hours, in California the situation is quite different which causes a great deal of confusion.

According to theCaliforniaDivision of Labor Standards Enforcement (DLSE),Californialaw does not make a distinction based on what time the travel occurs.  If the employer requires the travel, the time must be paid.  However, according to the DLSE, an employer can establish a separate rate of pay for travel time, provided that it does not fall below the state minimum wage rate.

An employer inCaliforniais allowed to establish a special travel time rate that can be less than an employee’s regular rate of pay.  The travel time pay rate can be as little as the State minimum wage.  However, travel time is counted as work time and thus overtime may be due for travel.  Also, travel time pay, if less than an employee’s normal earning, must be clearly outlined to all employees in advance, preferably in the Company’s employee handbook.  In the case where travel time in either direction or travel time and work time exceeds eight hours in a workday, the employee must receive travel pay at one and one-half times the weighted average of the employee’s regular pay rate and the travel time rate. 10.24.2011.