I was recently asked by a client to explain federal wage and hour regulations addressing work travel by non-exempt employees (employees who are paid based on an hourly wage rate and entitled to overtime pay). In the course of this exercise, I quickly remembered how certain forms of travel can make the job of a payroll administrator very difficult.
Federal regulations addressing pay for employee travel beginning and ending on the same work day are easy to understand and apply, for the most part. Generally speaking, it is clear that (1) an employee's regular commute between work and home is not compensable time; (2) travel time occurring after an employee commences any meaningful work activity is compensable; and (3) all travel occurring between an employee's first and last work locations of the day is compensable.
My client and I next moved to the subject of travel pay associated with overnight travel by non-exempt/hourly paid employees. The regulations on this subject, however, are not as easy to understand. In fact, it is not difficult to find inconsistent opinions among legal commentators and blog writers on what types of overnight travel must be compensated. There can be little doubt that this confusion has caused many employers not to properly compensate employees for travel time while away from home on overnight work assignments. Conversely, other employers have erroneously concluded that all such travel is compensable, when in fact it is not.
Fortunately, a recent decision by a federal district court in the same federal circuit in which Tennessee is situated has helped clarify the law. In Bassett v TVA a federal district court in Kentucky interpreted the overnight travel regulations to require pay for time spent traveling to or from the location of work when the travel occurs (1) on the employee's work day during normal work hours; and (2) on non-work days, if the travel occurs during the employee's normal work hours.
Travel time to or from home associated with overnight travel is not compensable when (1) it occurs outside the employee's normal hours of work, whether on a work or non-work day; and (2) the employee is a passenger in a vehicle, even if the travel occurs during regular work hours.
Prior to this decision, there was a fairly common perception that whenever an employee personally drove an automobile (as opposed to being a passenger) she was entitled to pay for that travel time, regardless of what day (work day or off day) and the time of day (regular work hours or off hours) during which that travel occurred. The court in Bassett clearly rejected that interpretation.
I could not disagree with my client when she suggested that the Department of Labor’s overnight travel rules were not particularly understandable – even with the clarification added by this court decision. The variables within the rule can make implementation of a compliance program rather difficult. While this recent decision is helpful on the subject, the overnight travel rule remains fraught with pitfalls. Of course, while the Bassett decision is certainly persuasive authority on the subject, other federal district courts called upon to consider this same issue may come to different conclusions, thereby throwing the matter back into the muddy waters of competing interpretations of ambiguous regulatory provisions. If you have hourly non-exempt employees engaged in overnight travel, a periodic audit of your travel pay practices is highly recommended. Legal counsel familiar with wage and hour regulations can work with employers to establish time keeping protocols for traveling employees designed to protect employers from employee claims and wage and hour audits on this subject.