The Department of Labor’s Wage and Hour Division (WHD) resumed their practice of issuing opinion letters in 2017. Since then, they have issued several, including one last spring that pertained to paid travel time when attending a conference or other work-related matter (FLSA2018-18).
Opinion letters are the WHD’s way of communicating clarification on certain topics pertaining to the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). The practice of writing opinion letters had been abandoned between 2010 and 2016. During this time the department issued administrative interpretations (AIs) that provided more general information on its positions. There were only seven issued on the topic of FLSA and two on the FMLA.
The newest opinion letters, written by Acting Administrator Bryan L. Jarrett, provide insight into issues of how to compensate employees when they are travelling for work.
FLSA2018-18 responds to an employer’s question regarding how he should compensate his traveling employees. He provides three scenarios concerning the compensability of travel by employees. The first involves how to compensate employees who travel by plane to get to conferences and/or training at a corporate office. The second involves more regular travel, as it relates to getting to work to get an itinerary and then traveling from there to a given work site. The final scenario involves workers who travel to multiple locations throughout the day.
For travelling out of town, as in the first scenario, Jarret provides three ways of determining compensability. Time should be compensated if it “cuts across an employee’s regular work hours, regardless of whether the travel is on a weekday or weekend.” This tenet becomes more convoluted when the employee traveling does not have “regular work hours.” The three methods that can be used are:
Method 1: Reviewing the employee’s work records to find “typical work hours” that he or she worked in the most recent month of employment.
Method 2: If there is not a clear pattern of “typical work hours,” then an employer may calculate the average start and end hours for the most recent month of employment.
Method 3: In the off chance that an employer cannot calculate normal work hours using either of the first two methods, employers may negotiate with the employee a “reasonable” amount of compensable travel time.
Jarret explains that the “WHD will not find violation for compensating employees’ travel,” if one of the three aforementioned methods are used to calculate regular work hours.
Regarding the second and third scenarios relating to commuting to and during work, Jarrett clarifies that activities before and after work, including the commute to and from the office, are not compensable. Travel during the day, as it pertains to work, does qualify as compensable time worked.
For more information on these topics, you can attend the Delaware SHRM State Conference on November 1 and 2 at Dover Downs Hotel and Conference Center in Dover, Delaware. Bill Bowser will be addressing topics that pertain to paid travel time, as well as other topics relating to FLSA and FMLA. If you’ve ever seen Bill in action, you know that good times are sure to be had by all!