National Apr 17, 2018

U.S. DOL offers opinion letter on employee travel time

Early this month, the U.S. Department of Labor issued an opinion letter addressing the issue of how to compensate hourly employees, with no regular workday, for travel under the Fair Labor Standards Act. Under the FLSA, non-exempt employees are required to be compensated for travel away from home when it cuts across an employee’s regular work hours. This is true regardless if travel is on a weekday or a weekend. For example, a 9-to-5 employee who flies for an out-of-town assignment on a Tuesday, at 10 a.m., would be compensable since it is during his normal work hours. However, if the employee travels on a Sunday, at 10 a.m., that travel time would still be compensable since 10 a.m., is still considered part of the employee’s normal 9-to-5 work schedule, even though the employee does not normally work on a Sunday. The question the DOL tackled in the opinion letter was how an employer figures out an employee’s regular work schedule, if the employee doesn’t have a regular schedule.

The DOL opined that, in situations in which an employee does not have a regular schedule, the employer can ascertain an employee’s normal work hours in one of three ways:

First, the employer could review the employee’s time records during the most recent month of regular employment. If the records reveal typical work hours, the employer can consider those as the normal hours.

Second, if the records do not reveal any normal working hours, the employer may instead choose the average start and end times for the employee’s workdays.

Finally, in the case in which employees truly have no normal work hours, the employer and employee may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.