FLSA & Paying For Travel / Training Time

Steevo · October 2006

I have found out that, unbeknownst to me, one of my hourly, NON-EXEMPT RNs traveled to TX on a recent weekend with one of my docs to do some training associated with a clinical study in which our practice has agreed to participate. This was in addition to her normal Monday through Friday shift responsibilities at the practice.

Before they ventured out on this trip, there was an oral agreement that the practice would pay for her mileage and her airfare, plus a portion of the stipend the study pays the practice... and THAT'S ALL.

1. Is the practice obligated under the FLSA to
pay this nurse for her TRAVEL TIME from VA to
TX and back? If so, does she get paid her
normal rate for the time spent in the air
terminal and on the airplane / cab?

2. Is the practice obligated under the FLSA to
pay this nurse for her TRAINING TIME in TX?
If so, I assume she should be paid her normal
rate, but I seem to recall that there is an
8-hr/day max put on training time. Is that
true?

I'd appreciate any guidance on these matters, or if you can point me in a direction on the HRHero.com web site where I can get the answer.

stilldazed · October 2006

This should get you started at dol.gov:

[url]http://www.dol.gov/esa/regs/compliance/whd/whdfs22.htm[/url].

There should be more info at 29 CFR 785.39.

In a reference I found rather quickly: "Travel that keeps an employee away from home overnight is designated as travel away from home by WHD regulations. Travel away from home is paid work time when it 'cuts across the employee's workday' because the employee is deemed to be simply substituting travel for other duties. The time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on nonwork days. WHD does not consider time spent traveling away from home outside of regular working hours as a passenger on a plane, train, boat, or bus as paid work time."

Sounds like you're on the right track with the 8-hr thing, if an 8-hr work day is the RN's normal workday.

davids · October 2006

I agree with StillDazed that travel time that cuts across normal work hours, even on weekends is compensable. Additionally, any hours that she actually performed duties are compensable. So, if during travel that occurred outside of normal work hours, she was preparing the presentation, those hours become compensable as she was working during that time.

Dutch2 · October 2006

I realize that we are not required to pay for every minute of travel time, but we do. Our thinking is that if they were not traveling for the company, they could be home with their family, etc.; therefore, we pay for all travel time as if they were at work.

leadvisor · May 2010

I understand that the passenger doesn't need to be paid but how do you decide who will do the driving? It keeps coming up and employees are coming up with excuses as to why they cannot go together so that both get paid.

Julie Athey · May 2010

It sounds like you will need to pay for at least part of her travel time. Exactly which hours are included depends on whether it was an overnight trip. For one-day travel, you have to pay for ALL travel time, regardless of whether it occurred during the employee's regular working hours. For overnight travel, the following rules apply: 1) She must be paid for any time she was the driver, regardless of whether it occurs during her regular working hours; 2) if she is a passenger in a car, train, airplane, etc., she need only be paid for travel time that occurred during her regular working hours (even if it is on the weekend and she doesn't ordinarily work weekends); and 3) she must be paid for any hours that she actually worked (i.s., attended the training), minus meal breaks.

I'm not sure if I read your question correctly regarding the rate at which you intended to compensate the employee, but you need to pay her overtime for any hours worked over 40 hours in the week at the rate of [I]one and a half times her regular rate of pay[/I]. This is true regardless of whether the extra hours were travel time or training time. I am unfamiliar with any limit on the number of training hours that must be compensated in a given day, but that may be a matter of state law.

Holly Jones will probably also be chiming in on this topic next week. She is the current editor of M. Lee Smith's Wage and Hour Compliance Manual (I have been co-author and editor of past editions of that manual). If you have access to the company's HRLaws.com website, you can access the manual there. I don't believe it is available on HRHero (other than for purchase).

Hope this helps!

Julie Athey

davids · May 2010

[quote=leadvisor;719884]I understand that the passenger doesn't need to be paid but how do you decide who will do the driving? It keeps coming up and employees are coming up with excuses as to why they cannot go together so that both get paid.[/quote]

I think it is up to the employer to decide who drives. You can ask the employees to decide among themselves, but if they can't, you get to make a unilateral decision. I suppose you can come up with a rotation so over a year everyone gets a chance to be the driver.

As for employees coming up with excuses as to why they all need to drive, the only compelling argument I can think of is an employee with a disability who has a special vehicle. We have had employees complain about tobacco odor in another employee's car. Since we don't have to accommodate smoking, we told that employee he had to drive with others and couldn't smoke in their cars. What excuses are you hearing?

Holly Jones · May 2010

Focusing on Leadvisor's question, since the initial wage question is a few years old and seems to have been covered pretty thoroughly:

As far as deciding which employee drives, there are no real specifics in the FLSA/Portal to Portal Act beyond what you already know -- that the passenger is not paid, but the driver is. (However, note that in cases where a passenger/co-rider is required as part of the job assignment, the passenger is considered to perform compensable work).

However, if you are having problems with employees seemingly shirking carpooling possibilities in order to both be paid for the travel time, there may be a couple of creative workarounds.

First, when considering the cost of paying multiple employees' wages, are there instances where paying for public transportation for all employees might work out to be more economical? Obviously this would depend heavily on the distance traveled, available accommodations, etc., but there may be cases where paying a shuttle service to transport four (now non-compensable passenger) employees might be cheaper than paying four employees to drive themselves.

A second option that comes to mind, which is also dependent on what your employees will be doing, travel distance., etc., is permitting the employees who could otherwise be passengers to work during the travel time. In other words, if it seems that the only reason the employees are making excuses and not carpooling is because they just don't want to lose out on the pay opportunity, then perhaps make arrangements for employees to perform work while in the passenger seat. You would still be paying for both employees during the travel time, but at least one of them could be doing something more productive than driving.

Barring these options, again, depending on the reason for the travel, would it be possible to simply designate that a particular (perhaps supervisory, to answer the "who do you choose" question) employee be responsible for the driving and that employees' attendance at the events be contingent upon their ability to ride with this person?

JAthey · May 2010

LOL, I didn't even notice how old the original question was, Holly. Oops!

FLSA & Paying For Travel / Training Time

Comments