“Ask Sarah” Column

Dear Sarah,

Our office is sending several employees to Austin for a multi-day conference. We are about two hours away, so there is a bit of travel time in the car, and they will be staying overnight in a hotel. They are leaving on Wednesday and returning Saturday afternoon. Some of the attendees are non-exempt employees, and we want to make sure we handle their pay correctly during this trip! Do we need to pay them for their travel time? What about their time at dinner or sleeping?

Signed,
Employee Travel

Dear Employee Travel,

Great question! Paying non-exempt employees for travel time can be tricky, but the Fair Labor Standards Act (“FLSA”) provides guidance. Here’s what you need to know (and a little more you didn’t ask!):

Commuting Time: Normal commuting from home to work and back is not compensable, even if the employee is driving a company vehicle.

Travel During the Workday: If an employee travels as part of their regular work duties (e.g., traveling between job sites), that time is compensable.

One-Day, Out-of-Town Travel: If an employee travels to another city and returns the same day, all the time spent traveling is compensable, regardless of the employee’s regular work hours. However, meal breaks are not paid, and the employer may deduct the time the employee would have spent commuting to his or her regular work location.

Overnight Travel: When travel keeps an employee away overnight, the rules get a little trickier! You first must determine whether the employee is traveling as a “driver” or a “passenger.” The employee is a driver if they are driving themselves or others at the employer’s direction. The employee is a passenger in all other instances—if they are riding in a car someone else is driving, if they choose to drive themselves instead of riding as a passenger, or if they are traveling another way, such as by plane or train.

• For passengers, any travel time that occurs during the employee’s normal working hours is compensable—regardless of whether it’s a weekday or weekend. Travel outside of regular hours as a passenger generally isn’t paid, unless the employee is working while traveling. (For some, this raises the question of what their “regular hours” are—for most, this means their typical set schedule, but employees who work shifts or other irregular hours may find this more complicated.)
• For drivers, all the time spent driving is compensable work time, regardless of the employee’s normal work hours.

Time Outside Normal Working Hours: Generally, time spent sleeping, eating, or engaging in personal activities outside of regular working hours is not compensable during travel. For example, if an employee is free to use their evening time as they wish while traveling overnight, that time is not paid. However, if they are required to attend a work-related event, training, or dinner with clients or supervisors, that time may be compensable.

These rules can be tricky, and if employees don’t have a clear understanding of how to report their time, it can cause problems for you. Take care to clearly communicate the expectations before travel so employees know how to report their time and understand what is paid and what is not.

Need more guidance? Feel free to reach out!

“Ask Sarah” is prepared by Sarah Glaser, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.