If you have a mobile workforce, knowing what travel time gets paid for and counts toward overtime is a big deal. Some employee travel is considered hours worked and other times it isn't, but that's just the tip of the iceberg. We created the "Ultimate Guide to Overtime and Travel for Mobile Workforces" to help get you pointed in the right direction. Download it for free below.
Some employee travel time is paid. Some of it isn't. This guide can show you which is which, and so much more.
The "Ultimate Guide to Overtime and Travel for Mobile Workforces" is over 80 pages of information from both federal and state regulations. In the guide we cover:
The Fair Labor Standards Act (FLSA) from the Department of Labor outlines the regulations at the federal level, but each state has the ability to add their own labor laws. Sometimes these laws conflict. We outline the differences between federal and the laws of all 50 states and Washington DC.
What do you do when the federal and state laws conflict? Don't worry, we'll show you.
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In the United States, wage and work requirements are regulated by the Fair Labor Standard Act (FLSA). FLSA was originally created in 1938 and is administered by the Department of Labor (DoL) Wage and Hour Division (WHD).
FLSA applies to all 50 states and US territories, but each state can create their own wage and overtime requirements as well. In the event of a conflict between the labor laws in a state and the federal standards outlined in FLSA, the employer must follow the regulations which most benefit the employee in terms of pay.
This guide will cover the regulations set out by the FLSA and note when there are state laws that differ. It’s worth noting that this document is intended to be a guide, but due to the complex and nuanced nature of this subject, it is not intended to be used as legal advice. Consult an attorney or the relevant administrative body for further information.
Minimum wage is the lowest hourly rate an employer can pay an employee.
$7.25 per hour is the minimum wage at the time of writing. The DoL can, and does, periodically change the minimum wage rate, so always check to ensure you’re compliant with the latest changes.
There are a few exceptions to this minimum wage:
A new employee who is under 20 years old can be paid $4.25 per hour for the first 90 calendar days of employment. Note those are calendar days, not business days. After 90 days have passed, their minimum wage rate becomes the normal rate (currently at $7.25 per hour).
Employees who regularly earn at least $30 a month in tips are considered tipped employees. Tipped employees must be paid at least $2.13 an hour. This provision presumes that by including the tips received by the employee alongside the $2.13 paid by the employer, the employee will make at least the standard minimum wage of $7.25 an hour. If the employee does not make that much, the employer must make up the difference.
Certain classes of employees are exempt from minimum wage legislation. These include executive, administrative, and professional employees, outside sales employees and certain skilled computer professionals. Seasonal employees of recreation or amusement establishments may also be exempt, along with employees of certain small newspapers, small telephone companies and fishing operations. Small farm workers, casual babysitters, newspaper delivery people and companions to the elderly or infirm are also exempt.
Overtime is defined as all the time the employee spends working beyond the standard 40 hours per week. All overtime must be paid at a rate of at least 1 ½ times that employee's regular (or average) rate. An employee who makes $10 an hour must make at least $15 an hour for each hour over 40 they work.
For employees with multiple pay rates, such as an electrician that makes $25 an hour while working on a job site and $10 an hour while traveling between job sites, overtime is calculated using the average rate for the first 40 hours in that workweek. If our electrician worked 30 hours on job sites ($25 an hour) and spend 10 hours traveling between job sites ($10 an hour) for the first 40 hours in a week, then the overtime rate for that week would be $21.25 an hour. (30 hours at $25 = $750 + 10 hours at $10 = $100) = $850 / 40 hours = $21.25. Next week could be a different mix of hours so the overtime rate may also be different.
FLSA only outlines overtime as more than 40 hours a week but has no restrictions with regards to weekdays, holidays or maximum hours worked in a day. Under these guidelines, working 20 hours on Christmas Day is treated the same as working 4 hours each day Monday through Friday.
Certain employees are exempt from overtime. This includes all employees exempt from minimum wage, but also includes certain commissioned employees of retail and service establishments, some salespersons (who do not work for the manufacturer of what they sell), employees paid by trip rate plans (transportation), some broadcasting station employees, domestic service workers who reside in their employer’s residence, movie theater employees, farm workers and some employees of certain bulk petroleum distributors.
For companies with mobile workers, it's important to understand when and what kind of travel is considered “hours worked.” The general rule is that travel to and from work is not considered “hours worked” whereas any travel between the start and end of a normal business day is. Let’s run through a few scenarios to see how this works.
Let’s say Jan is a home healthcare worker who routinely visits multiple clients per day at their home to check up on them. If Jan’s employer requires her to come to an office before visiting any clients, the time it takes her to get from her house to the office is not considered hours worked and does not need to be paid for. If Jan doesn’t go to an office, and instead goes straight to the house of her first client, the travel time from her home to the client is also not considered hours worked.
Once at work, all travelling Jan does from one client's house to the next during the day is considered hours worked. Any travelling done during her normal lunch break; however, is not considered hours worked, even if that travel moves her closer to her next work stop.
The end of her workday is much like the start - the drive from her last work location to her house is not considered hours worked. If she has to visit an office after finishing with her last client, the travel time from the last client to the office is considered hours worked, but when she leaves the office, she is off the clock. If instead, she is free to go home directly from her last client's home, that time is also not considered hours worked.
If an employer requires an employee to travel to another city to perform work, most of the same rules apply. If the employee first goes to their normal office or worksite and then travels to another city, the travel time to the office is not considered hours worked while the travel to the new city is. If the employee leaves from their home directly to the new city, the travel time to the new city is considered hours worked, but the employer may elect to deduct from that time the time it normally takes the employee to get to work.
Here’s an example - It normally takes Jan 30 minutes to get to work, but today she’s working in another city. The trip to this new city takes Jan 2 hours. In this scenario, Jan has 1 ½ hours of travel time considered hours worked - 2 hours to get to the other city minus the 30 minutes she normally commutes. If Jan instead has to check in at her office first then leave to the other city, the entire 2 hours of travel time is considered hours worked. The same rules hold for the return trip.
FLSA doesn’t distinguish between weekdays and weekends, and this effects when travel is considered hours worked. Any travel that keeps an employee away from home overnight which happens during their normal working hours is considered as hours worked.
Let's say that Jan usually works 8am to 5pm Monday through Friday. There is a three day conference being held in another city that her employer wants her to attend. If Jan travels to the conference on a Saturday or Sunday, any travel time done between 8am and 5pm must be counted as hours worked, even though Jan doesn’t usually work on weekends. While this may be confusing, it also means that if Jan travels to the conference on any day, any travel time outside of 8am to 5pm is not counted. If it takes Jan 6 hours to get to the conference city, and she travels from 2pm to 8pm, only the 3 hours between 2pm and 5pm count as hours worked.
If an employee is waiting around and not doing any work, do you have to pay them for the time they waited? The answer, according to FLSA, is sometimes. There are two types of waiting: on-duty waiting and off-duty waiting.
On-duty waiting counts as hours worked, so the time spent waiting must be paid and counts towards overtime calculations. On-duty waiting is when an employee is not doing the work they were hired to do (otherwise, they would be working, not waiting), but they remain available for direction from their employer and cannot use the time for personal purposes. If an employee is ready and able to work, but cannot for reasons outside of their control (and they are not released from all job duties), they are on-duty waiting.
Off-duty waiting is unpaid and doesn’t count as hours worked. Being off-duty means the employee can leave the job site, can use the time for personal purposes and knows exactly when they need to return to work.
A key way to distinguish between on-duty and off-duty waiting is by determining if the employee can spend the time for personal use and if they know exactly when the waiting will end. Even if released from all job responsibilities and allowed to leave the job site, an employee is still considered on-duty if they do not have a specific time to return to work. “I’ll call or text you when to come back” isn’t specific, so the waiting time is still considered on-duty.
Imagine a truck loader at a distribution center, waiting for a truck to arrive for loading. They are on-duty while they wait if they cannot leave and don’t know exactly when the truck will arrive. However, if that worker loads a truck at 8am, and is then released to do whatever they want as long as they are back at 2pm when the next truck arrives, then they can be considered to be off-duty.
Another example is a pest control employee at a client's premises, waiting for the property owner to let them in. If they must stay on site while they wait and are not sure exactly what time they will gain access to the property, they are considered to be on-duty. Likewise, a plumber on a construction site that cannot commence their work until the framers are done is on-duty waiting if they are required to stay on site and are not sure when the framers will be done. If the plumber is allowed to leave the site, is not expected to be doing any work, and has an exact time to return to start working again, then the wait can be considered off-duty.
On-call is more difficult to understand because it is subject to the actual on-call policy of the employer. Obviously, once the employee is called into work, that time is considered hours worked. The time the employee spends waiting to be called is less black and white. The best rule of thumb is this: if the employee can effectively utilize their time for unrestricted personal purposes while waiting, they can be considered off-duty.
A key part of this distinction is if the employee is required to remain at the job site. If they have to stay on location, or are restricted to stay within a certain distance of their work location, they are on-duty. If the worker can go home and do anything they want (including sleep or leave to go anywhere else they want) they are off-duty.
Federal law does not require breaks or meal periods to be given; however, most states do. Federal law does impose rules on companies that choose to provide meal or break periods (or those required to by state law).
Breaks (non-meal) that last less than 20 minutes are considered as hours worked and must be paid. On the other hand, meal periods are unpaid and are not considered to be hours worked. To be a bona fide meal period, the period must last at least 30 minutes and the employee must be completely relieved from duty. If any work happens during the meal period, the entire period becomes work time and must be paid.
Download the guide to see how each state's laws differ from the federal guidelines, and what to do when they conflict.
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