If Neal Page (Steve Martin) and Del Griffith (John Candy) were hourly employees paid for their travel time, they would have had a nice paycheck! Indeed, how should hourly employees be paid to travel? Minnesota does not have a law stating how employers must pay hourly employees who travel overnight away from home, so we look to the FLSA (Fair Labor Standards Act) and DOL’s (Department of Labor) corresponding regulations. 29 C.F.R. 785.33-785.41 sets forth how to apply the Portal-to-Portal Act (an amendment to the FLSA) to travel time.
Though the adventure in Planes, Trains and Automobiles is one-of-a-kind (and brilliant at that according to Roger Ebert!), certainly overnight traveling can feel like it is all work. Does an employer have to pay for the employee to sit at the airport or on the airplane? How about to answer work emails at the hotel?
What Is Travel Away From Home Community?
As it relates to “travel away from home community”, if the travel keeps an employee away from home overnight, that is considered “travel away from home”. Any time spent in “travel away from home” is considered work time when it “cuts across the employee’s workday”. What the heck does that mean?
Well, during the normal workday, the DOL assumes the employee would typically be working during that time if not for the travel and thus, the employee is substituting travel for his or her other duties and must be paid during that time. Further, this applies no matter the day of the week. So, if the employee typically works Monday – Friday from 7 a.m. to 4:00 p.m. with a 1 hour lunch break, any travel during those times no matter the day of the week (including the weekend) are considered hours worked. As usual, the regular meal period does not count and need not be paid.
What About Time As A Passenger or Sitting At the Airport?
Time spent as a “passenger” is not considered work time if outside of regular work hours, if the employee is a passenger on a plane, train, boat, bus or car. In other words, so long as the employee is just going for a ride (in our example, between the hours of 4:01 p.m. and 6:59 a.m. ) that time does not need to be paid. Certainly, an employer may choose to pay the employee for that time, but is not required to do so. Accordingly, it is not uncommon for employees to work their regular work during the regular workday and then travel outside of their normal hours; then the work still gets done, and the employer does not need to pay the employee for the time spent traveling as a passenger.
Also, keep in mind that time “as a passenger” is not the same thing as time sitting at the airport! Sitting at the airport waiting for a plane to arrive does not make a person a “passenger” and the DOL will likely consider that as work time spent in travel away from home outside of regular working hours.
What If the Employee Works While On The Plane, Train or Automobile?
Here is where recordkeeping issues and disputes most often arise. Despite the above, if the employee is traveling as a passenger outside his or her normal work hours and is “required to work” while on the plane, for example, that time actually spent working is work time – even though the employee is traveling away from his or her home community and is a passenger traveling to another location. How can this time be managed? An employer may prohibit the employee from performing work while traveling (except for the event they are traveling for) – this would most often apply to skilled workers who are unlikely to do much if any work via a laptop or other device.
As for the majority however, those traveling are likely to have a laptop or other device for working remotely. The employer can (and should) require the employee to record all hours worked and the times throughout the duration of the trip. The employee needs to be paid for all hours worked, but could be disciplined for working during times he or she was told not to (but, obviously, the nature of the discipline cannot be deducting pay).
Can A Different Travel Wage Be Paid?
Minnesota employers may establish policies and practices whereby the employee’s hourly wage is different for travel time. However, in no event can the hourly wage be less than minimum wage – I know you all know this! Keep in mind that overtime frequently applies in travel weeks, and so the regular rate would also change. As a matter of employee relations, employers should consider making this a clear policy and at a minimum notify the employee of a differently hourly wage before the travel time is taken.
In short, employee travel will hopefully never be as exciting as the 1987 movie Planes, Trains & Automobiles, but it can be complicated nonetheless. Flight delays, time changes, overtime, weekend double time, etc., all of these issues may come into play and should be considered and addressed when determining an employee’s travel time compensation.