Working a job that regularly involves traveling is tough work. The very nature of the traveling requires you to disconnect from home and family. It’s an especially difficult for those with families. It’s not just the long hours, it’s the frequent, complete disconnect from your home. In addition to the struggles of traveling, there is also the challenge of figuring out the appropriate pay structure. That can be true whether you routinely travel long distances, within north Texas, or occasionally to a conference or meeting. Today’s post will deal with the wage and overtime issues surrounding traveling work. If you believe you have an issue with unpaid wages or overtime pay as a result of work travel then you should talk to a Texas employment lawyer right away.
Salaried or Commissioned Employees Who Travel in Texas
Many employees who regularly travel out of Texas receive pay by salaries or commissions rather than an hourly basis. If you are correctly paid on a salaried or commissioned basis then you are paid your flat salaried amount or commissioned earnings regardless of hours worked.
The only real issue is whether you receive correct classification as a salaried or commissioned employee. That conversation is its own tangent; but you can read more about whether your classification is appropriate here. If you have a job with regular travel then the rules around travel pay discussed below apply to you.
General FLSA Travel Pay Rules
Generally an employee who is paid hourly and is not exempt under the Fair Labor Standards Act (FLSA) and the Texas Payday Act must be paid at least minimum wage for each hour of work performed for the employer and must be paid one and a half times his or her regular rate of pay as overtime pay for each hour worked in the workweek over forty hours. The conflict over travel pay is what part of that time is work that entitles you to pay.
For most employees, spending time away from home for any purpose related to your employment seems like work. Employers tend to think work is when you are at the work site performing your regular job functions. Neither is entirely true. The FLSA and its administrative regulations set out rules broader than what employers would like. Unfortunately, the regulations around travel pay are less than clear. Combined with eighty years of litigation we are still trying to get this right. As of now, these are the general rules as they apply for non-exempt, hourly employees.
Home to Work Travel Rule
Generally when you travel to your normal work site or return home from work in the course of your normal workday, this time is not compensable. Your employer does not owe you money for traveling to your normal job. For employees who might be dispatched to work different days at different work sites within the same general area, the employer is not required to pay you for your travel time from home to work or work to home even when it takes you longer to travel between home and work for more distant work sites. If you travel by some method that allows you to do work while traveling, such as answering emails while riding a train, then you must receive compensation for the time you spent answering the emails. However, this is the general travel rule and there are some incoming exceptions.
Special One Day Assignment Rule
Now if you normally work out of the same work site and your employer instructs you to work at a location that is in a different city than your normal work location and you travel to the alternative site and return home in the same day then your employer owes you pay for the travel time to the alternative site and back home less the normal length of time it takes you to travel to your normal work site and back home. Included in compensable travel time is all time spent driving or as a passenger in transit as well as time spent waiting for transit, such as waiting at an airport or rental car facility to be able to travel.
“All in a Day’s Work” Rule
Now if you work a job in which you travel between work sites during your work day then your travel is considered “all in a day’s work” and no different from any other work you perform for your employer so you must be paid for all of this travel time. One way employers commonly violate the FLSA is by ignoring this rule for employees who must travel to a company location to pick up tools and/or a company vehicle before going to the work location where that employee starts performing his or her regular job duties.
When the employee arrives at the company location, he or she has begun working and the subsequent travel time to the next work location must be included as wages, along with the travel back to the company location for the employee to drop off the employer’s property. This rule typically applies to traveling repair/installation technicians and construction workers but may apply to people in other positions.
Travel Away from Home Rule
This is the rule that applies to hourly employees who travel long distance either on a regular basis or infrequently for work purposes. If your work-related travel requires you to travel and stay away from the home community overnight then this rule will apply to the travel time. If your travel is a day trip, even if it results in a workday longer than your normal work day, then the Special One Day Assignment Rule applies to your travel time. You must receive pay for your travel time even if it cuts into days your hours that you normally would not work (such as weekends).
Under this rule, the Department of Labor will not enforce the rule for time spent as a passenger in a transportation vehicle unless you also spent that time performing other work tasks. However, if you are driving a car or waiting for your transportation then that time is compensable. This rule may not make complete sense, particularly when compared to the Special One Day Assignment Rule but it is a compromising rule for the employer and employee.
Common Employer Violations of these Travel Pay Rules in Texas
1. Misclassify employees as salaried to avoid travel pay
Just because your employer pays you on a salaried basis does not mean you are properly classified as exempt. You are not properly classified as an exempt employee merely because you travel or generally work independently. Although many traveling employees are commission or exempt under the FLSA that does not mean all employees fall into either classification.
2. Leave out time in the “all in a day’s work” rule
As discussed in the “all in a day’s work” rules explanation, employers who require employees to pick up company vehicles or equipment before performing other job responsibilities often only pay employees for work performed once they arrive at the location where the employee will perform the bulk of their job duties. That can leave the employee shortchanged pay each week for time transporting company equipment between work sites.
3. Refuse to pay travel time to conferences, meetings, etc.
Another common violation of travel pay rules occurs with employees who infrequently travel out of town. Unless you are exempt, your employer must pay travel time in conformity with the FLSA travel rules. A common excuse from employers is the travel is outside of work hours so they don’t pay for it. It does not matter when you travel. If you are traveling for work purposes then the FLSA travel rules apply, not whatever your employer feels like paying.
4. Refuse to pay overtime for travel time
If travel time is paid time under FLSA rules then that time is subject to minimum wage and overtime rules. If travel time pushes your work hours above forty then you receive overtime for each hour over forty.
Talk to a Texas unpaid wages lawyer
Paid time rules are complex and within these rules are many exceptions and specifics. If you travel for work and believe your employer may not pay you what you are entitled, then you should talk to a Texas unpaid wages lawyer right away. If your employer does not pay you all the time due, then you may have a claim for wage theft. That would allow you to recover the unpaid wages plus additional amounts. An experienced employment attorney can assess your case and determine how best to proceed.