The question of whether you owe an employee wages or even overtime for travel and commuting time is extensively debated. Given the stakes– two to three years back pay and in some circumstances double damages on top of legal and court expenses– this is something you really need to get right.
The ideal answer, when it comes to paying your non-exempt employees, is if they work, pay them. When someone is traveling on business, for example, is that work?
How about their commute? Is that work? Well, in some cases, yes.
Let’s be clear, exempt employees are a different story. State laws may impose even tighter standards.
“Many employers are unfamiliar with travel time compensability issues because it is usually exempt employees who are doing the traveling,” says Robin Shea, a Winston-Salem-based partner with Constangy Brooks & Smith LLP, nationwide employment law specialists.
“Exempt employees are not entitled to any extra compensation for travel time, even though they travel or work beyond their normal hours of work. If the employees on the road are non-exempt, they must be made up for any time in which work is actually performed (no matter when it occurs).
Furthermore, non-exempt employees must be compensated for travel time (even though they choose to spend the time reading a novel or watching a movie) that occurs during their regular hours of work.”.
That sounds fairly straightforward, but I for one got it all wrong when I tried to parrot it back to Robin.
When are you on the hook for travel time?
She normally works Monday to Friday from 9 a.m. to 5 p.m. The answer is, only if she actually works during the travel time.
You owe her regardless of whether she watches reruns of “The Office” or she works. Because she’s traveling during her regular hours of work, even if she’s traveling outside her regular work days.
The point is, like I said earlier, if she’s working, she should be paid.
Her travel itself does not make up work unless:
1. It happens between 9 a.m. and 5 p.m. any day of the week.
2. It happens outside those hours and she works while she’s traveling.
In either case, she may also be entitled to overtime if she exceeds 40 hours a week.
What if Jane texts a couple of co-workers while she’s traveling on Sunday night? Does that mean you have to pay her travel time? Not necessarily.
“There is an exception for time that is so trivial that it would be more trouble than it’s worth to keep up with it,” says Shea. She adds that the determination of what is trivial varies from one jurisdiction to another.
When are you on the hook for commuting time?
There’s the question of whether or not commute time constitutes work. Here again, it’s a rat’s nest. Consider the following scenarios:
Scenario 1: Joe has to go directly to a client’s office from home, rather than coming to the office.
He’s entitled to pay if he travels longer than an hour.
Scenario 2: Jane has to travel between offices during the day.
Yup, she has to be paid.
Scenario 3: Joe gets up in the morning, texts Jane, bangs out some urgent e-mails and answers a phone call from someone who can’t get logged into his computer.
While commuter travel of less than an hour is not often considered part of the workday, because Joe started working before he left for work, he may be entitled to compensation for his commute time (as well as the time he worked at home). According to Shea, the employer doesn’t have to start paying until the employee performs his or her first “principal activity of the workday,” or their “first task that is integral and indispensable” to the first “principal activity.”.
What to do?
Robin finds that employers make mistakes with this at two extremes. Either they mistakenly compensate non-exempt employees for all non-working travel time, or they fail to compensate them for any of the time. Either way, they lose. The only safe bet is to check with an attorney who’s very aware of the Fair Labor Standards Act (FLSA) and employment rules in your state. This is not the place for mere mortals.