Today’s FLSA Question: I am the assistant chief for a mid-sized full-time paid fire department. The department is sending two fire officers out-of-state to inspect a new piece of fire apparatus we are purchasing. The apparatus factory is about two hours away by airplane or 6 hours by car. One of the officers wants to leave a day early and travel by car instead of plane. We plan on paying each officer for the time spent traveling, but how should we compensate the officer that chooses to drive? We want to be fair, but this is raising some serious questions. How can we account for traffic delays, stops along the way, etc. Is there anything in the FLSA that addresses this type of situation?
Answer: Excellent question. The FLSA rules surrounding the compensability of travel time can be a little difficult to decipher to say the least. There are numerous Department of Labor (DOL) regulations related to travel time alone. Some of these regulations require employers to compensate employees for work-related travel, while others do not. Unfortunately, there are few clear-cut rules when it comes to travel pay for overtime eligible employees. In fact, many employers prohibit overtime eligible employees from engaging in work-related travel at all. It is just too much of a head-ache and liability to manage. In these organizations only overtime exempt employees are allowed to travel for work-related matters.
Here are a couple of questions that are relevant to determine whether work-related travel must be compensated:
- Is the employee performing work while traveling?
- What time of day or day of the week is the employee traveling?
- What is the normal workday [work hours] for the employee?
- Will the traveling take the employee away from home overnight?
- What is the mode of transport?
Surprisingly, there is a DOL regulation that addresses your specific question rather directly. The regulations found at 29 CFR § 785.40, entitled When private automobile is used in travel away from home community provides the following:
If an employee is offered public transportation but requests permission to drive his car instead, the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during working hours if the employee had used the public conveyance.
Based on the above DOL regulation, you can compensate both fire officers for the time spent traveling by air to the apparatus factory and still remain FLSA compliant even though one officer is choosing the longer option of driving. As is typical with the FLSA, nothing prohibits the employer from paying more than required [i.e. the officer’s drive time] however, you are not required too.
Now, after viewing the weather for the last several weeks, especially across the mid-west portion of the country, I will wait for your follow-up question. . . How do we pay an employee for work-related travel when his or her flight is cancelled or significantly delayed by inclement weather?