Every employee has a core job comprised of the main duties the employee is hired to perform. And just about every job has non-core elements that take up time and (often) seem unproductive—organizing or maintaining tools, putting on protective clothing, cleaning or picking up after work, or attending meetings. Do employees need to be compensated when they are not really working?
Continue Reading...In a recent blog, we addressed the confusion over paying non-exempt employees for work-related travel during the day, particularly as part of commuting. This blog covers what happens when a non-exempt employee has to take an overnight trip on behalf of an employer.
In cases where overnight travel is involved, under a DOL regulation, the employee’s travel time generally only has to be compensated when the hours of travel overlap the hours of the day that an employee normally works: However, the employee has to be paid for this travel time even if the travel takes place on a day that an employee does not normally work. Not only is this rule confusing, but there are exceptions to it – and exceptions to the exceptions.
Let’s try an example: Employee Michelle is a non-exempt employee who normally works 9 am to 5 pm for XYZ Company (“XYZ”) in New York. She is going to attend a convention in Las Vegas on XYZ’s behalf. She leaves work at 4 pm EST on Thursday and arrives back at home at 3 pm EST on Sunday. Her flight arrives in Las Vegas at 9 pm EST. It takes Michelle a half an hour to get her bags and another half-hour to take a cab to her hotel, whereupon she checks in and spends the next 8 hours playing craps at the casino. What would be considered compensable time?
Well, first Michelle needs to be compensated for her normal working hours, including time on the weekend. As a result, she must be paid for 8 hours (her normal working schedule) Thursday, Friday and Saturday. On Sunday, she must be compensated for 6 hours, or the 9am to 3pm.
In addition, if Michelle pulls out the laptop and starts doing company work on the plane after 5pm EST, that time becomes compensable as well (if she just watches the movie or does cross-word puzzles all the way to Vegas she doesn’t have to be paid for that time). Once Michelle hits McCarran International in Las Vegas, she’s back on company time, until she gets in the cab (unless she pulls out the iPhone® to check her company e-mail in the cab). Michelle’s gambling time is definitely her own – unless she is taking a key company client to the craps table with her. By the way, if Michelle has to carry “heavy, burdensome equipment, as contrasted with light hand tools” with her to set up the company’s convention booth, all the time Michelle spends lugging stuff around becomes compensable.
The important lesson to take away from this example is simple. If business travel is routinely required of your non-exempt employees, make sure that you instruct them to keep careful track of all of their time during their day and overnight trips. Also make sure that company travel policies reflect federal and state law, and are clear to employees. When in doubt, try to be rational and fair in compensating travel time, and/or call your employment counsel when the expense reports land on your desk.
Confusion often reigns when employers attempt to determine what their responsibilities are in terms of paying non-exempt employees for travel time. When employees are on the road on behalf of the company, it can be very difficult to say what, exactly, constitutes “time worked.” The Portal-to-Portal Act was enacted by Congress in 1947 specifically to carve out certain work-related activities for which employers would not be responsible for paying an employee.
In general, employers are not required to pay employees for normal commuting time to and from work. However, employers are often required to pay employees when they engage in work-related travel during the workday (i.e., travel that occurs after they begin work for their employer but before the workday ends).
A recent federal case, Kuebel v. Black & Decker [2009 WL 1401694 (W.D.N.Y.) squarely addressed the issue of compensable time for employees who travel to and from remote locations. A retail specialist for Black & Decker whose work demanded that he travel to inspect Black & Decker displays at various Home Depot locations disputed Black & Decker’s policy of deducting one hour each way of “commuting time” from the travel time for which it compensated such workers (based on an Opinion the DOL had given Black & Decker on retail specialist travel time in 1999).
The specialist argued that his workday began not when he arrived at his first Home Depot of the day, but before he got on the road, when he began reviewing and responding to company e-mails, reviewing company sales reports and engaging in other company activities. He further argued that his workday ended after he got home, when he finished checking the computer again for company business.
The court disagreed, noting that the homework Mr. Kuebel did for the company (for which he was compensated) could have been done at any hour of the day or night. The fact that he chose to do the homework immediately before and after his road trips did not make his commuting time compensable.
This case falls squarely within the general rule that commuting time is not compensable. Even if employees start or end their workday at a remote location away from the employer’s main place of business, employers are generally not required to pay for the time the employee spent traveling from home to a remote location at the beginning of the workday or from a remote location back home at the end of the workday. However, this general rule is not always so clear cut, as there are potential exceptions in which employers might be required to pay for at least some of this traveling time.
Enter keywords:
