The rules on what kinds of travel fourth dimension are (and are non) compensable for non-exempt employees are complex.  Every bit opposed to exempt employees—who by and large receive a salary intended to compensate them for all working fourth dimension, including fourth dimension spent in business-related travel—non-exempt employees are frequently only paid for the particular hours that the constabulary deems compensable.  Failure to pay a not-exempt employee for compensable travel time can atomic number 82 to both direct-time and overtime pay claims.

I travel time result that has confounded employers relates to business organisation travel involving an overnight stay.  Under federal rules, when an employee is required to travel away from home overnight, the travel time that cuts across the employee'due south "normal" or "regular" working hours is counted as time worked and should be paid—regardless of whether the travel occurs on a day on which the employee unremarkably works.  Conversely, travel that takes identify outside the employee's normal or regular working hours is non counted equally time worked and is not paid, regardless of the travel day.  Here's the regulation (29 C.F.R. § 785.39):

Travel away from abode community.

Travel that keeps an employee away from home overnight is travel away from home.  Travel away from domicile is conspicuously worktime when information technology cuts across the employee'southward workday.  The employee is merely substituting travel for other duties.  The time is non but hours worked on regular working days during normal working hours but also during the respective hours on nonworking days.   Thus, if an employee regularly works from 9 a.m. to 5 p.one thousand. from Monday through Friday the travel time during these hours is worktime on Saturday and Sun as well as on the other days.  Regular repast period fourth dimension is non counted.  Every bit an enforcement policy the [U.S. Department of Labor] will not consider equally worktime that fourth dimension spent in travel away from home exterior of regular working hours equally a passenger on an plane, train, gunkhole, passenger vehicle, or automobile.

The rule is adequately straightforward for employees with "normal" or "regular" working hours.  Simply what about an employee whose hours vary twenty-four hours to twenty-four hours, or from week to week?  How do you lot apply the "travel away from dwelling house" rule to that employee?  Pay zip at all for the travel time, on the ground that there are no "normal" or "regular" working hours?  Sounds risky.  Paying for all of the travel fourth dimension, if information technology cuts beyond whatsoever hours the employee might work on any mean solar day?  Sounds costly.  At that place'due south been scant authority on the issue, until this week.

In an opinion letter of the alphabet issued on Apr 12, 2018, the DOL's Wage and Hr Partition outlined 3 permissible methods that employers tin apply to reasonably define an employee'southward "regular" or "normal" work hours for purposes of the "travel abroad from home" rule:

  • If the employee's time records during the almost contempo month of "regular employment" records reveal "typical piece of work hours," the employer may consider those as the "normal" hours going forward unless some subsequent material change in circumstances indicates the normal hours have inverse.
  • If the records do non reveal whatsoever normal or typical working hours, the employer may instead cull the boilerplate start and stop times for the employee's workdays.
  • Alternatively, the employer and employee (or the employee'southward representatives) may negotiate and agree to a "reasonable amount of fourth dimension or timeframe" in which travel exterior of employees' dwelling house communities is compensable.  On this third option, the DOL cited to a 1964 opinion letter in which the bureau approved an employer'southward employ of an employee's average daily number of hours worked as the number of compensable hours on a travel 24-hour interval, provided the employer and employee concur on this method of determining the "normal" workday for travel time purposes.

The DOL notes that "[t]his is not an exhaustive list of the permissible methods for determining an employee's normal showtime times or end times [for purposes of the "travel away from dwelling house" dominion] … [b]ut when an employer reasonably uses any of these methods …, [the DOL] will not find a violation[.]"

A few other applied pointers for employers on this issue:

Outset, you tin can set up a dissimilar charge per unit of pay for travel fourth dimension (e.g., a flat fee for a travel day, or an hourly rate for fourth dimension actually spent in travel that is lower than the rate yous pay the employee for productive working hours), so long as (1) you notify employees of the split up charge per unit in advance of the travel, (ii) the rate is sufficient to cover the minimum wage for all compensable hours, and (iii) the organization does not violate any existing contract with the employee.

Second, you tin can require business travel at times that do not cut beyond any working hours, even if there are no "regular" or "normal" working hours.  Such a policy could, predictably, create employee morale issues.

3rd, you must ever remain mindful of state travel time laws, which may—depending on the state—crave payment for certain travel time where the federal rules exercise not.

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Tags: department of labor, Federal, FLSA, minimum wage, overtime, wage and hour