Friday, April 10, 2015

Overnight Stays – Paid or Unpaid?

Let’s say that an employer schedules its employees to attend training out of town. Those attending include three exempt and three non-exempt employees.  The training seminar starts on Monday morning at 8:30a.m. but it’s a three hour drive away, so everyone agrees that all of the employees should drive there on Sunday. The Employer has directed them to car pool in two cars to save expenses. The question arises whether the Employer has to pay the employees for their time in driving to the seminar location on Sunday.

Of course, travel time of exempt employees requires no additional pay, regardless of the day of the week. But what about the non-exempt staff? Many employers, therefore, erroneously believe that if they direct the exempt employees to drive the non-exempt employees to the training location then the non-exempt employees will have no claim for pay. 

The Department of Labor regulations state “As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.” Although it clearly states only those hours “outside of regular working hours” would not be considered hours worked, this statement is often misinterpreted to include all hours on days which are not normally work days. In fact, the only travel time as a passenger that is not compensable is:

  • Travel to overnight stays when such travel occurs outside of the employee’s normal work schedule, regardless of the day of the week, and when no work is being performed while traveling. Therefore, if an employee who usually works 9 a.m.-5 p.m. travels from 5 p.m. to 7 p.m. for an overnight stay, an employee does not have to be compensated for travel from 5 p.m. to 7 p.m. However, if that employee travels from 3 p.m. to 9 p.m. for an overnight stay, the employee would need to be paid for the hours from 3 p.m. to 5 p.m., as those are the employee’s normal work hours. Conversely, if an employee works while traveling (reading and responding to work e-mails, preparing work materials, etc.), all time spent working while traveling as a passenger must be paid. 
  • Any meal breaks of 20 minutes or longer during the travel time. 

Any other time spent as a passenger—be it during the normal work hours, in travel that’s all in a day’s work (CFR 785.38), or travel to special one-day assignments in another city (785.37)—is all paid time.

So, the only way to avoid payment obligations to employees for traveling to (and from) training locations is to direct that they travel as a passenger (in any mode of transportation) during hours which would not otherwise be scheduled hours of work on any day of the week.