Category: FLSA

September 28, 2017

Do Employers Have To Pay for Employee Travel Time?

Under the Fair Labor Standards Act (FLSA), employers have to pay minimum wage and overtime based on hours worked. But it’s not always clear what hours worked are. One perplexing question is whether employers have to pay for employee travel time. Let’s try to answer it.

What Is Work Time?

Most FLSA compensation requirements are based on time worked. Work time is generally any time that an employer “suffers or permits” an employee to work.

Interestingly, the law doesn’t actually tell us what “suffer or permit” means. But it’s clear that time worked goes beyond time that the employer intends the employee to be working. It typically includes any time spent working on the employer’s behalf, with or without permission.

What Isn’t Work Time?

The FLSA does say something about what doesn’t count as work time:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities,

which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. For purposes of this subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee’s principal activities if the use of such a vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.

What does all of that mean in the context of travel time?

When You Do/Don’t Have To Pay for Employee Travel Time

Standard commuting time to and from work is usually not work time. Travel during the work day as part of the employee’s principal work activity is work time.

However, things get more complicated if the employee travels out of town.

If an employee who normally works at one fixed location travels out of town and returns home the same day, then the extra travel time is work time. But the employer can subtract the normal commuting time.

Overnight out-of-town work travel adds another wrinkle. Then, the general rules are that:

(1) Any time the employee actually spends working is work time (this includes travel time driving a car).

(2) The portion of the day(s) when travel time crosses the employee’s normal work hours is also work time (this includes time as a passenger).

The first of these rules is easy enough to follow/apply/accept. The second is harder. Consider the case of an employee who normally works 9:00 a.m. to 5:00 p.m. When she travels out of town for an overnight stay, the employer has to count any travel time during those hours as work time, even if she isn’t actively working or even driving. And this even includes travel on days of the week that the employee doesn’t normally work, such as weekends.

Employee Travel Time Caveats

These rules pertain to federal minimum wage and overtime requirements for non-exempt employees.

The FLSA does not require employers to pay exempt employees for their travel time.

State wage and hour laws may impose additional requirements.

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July 17, 2017

Administrative Exemption – A Quick Guide for New York Employers

Most New York employers are subject to both federal and state minimum wage and overtime requirements. In most cases, this means the employer must pay its employees at least the minimum wage for all hours worked and time-and-a-half for hours over 40 in a week. There are, however, many exceptions to these requirements. This post addresses the administrative exemption under both the FLSA and New York law.

(Click here for A Quick Guide of the New York State and federal Professional exemptions.)

(Click here for A Quick Guide of the New York State and federal Executive exemptions.)

FLSA Administrative Exemption

Despite the name, the “administrative” exemption does not necessarily apply to administrative assistants or certain other employees with “administrative” roles. In fact, it more often applies to director and executive level employees.

Under the FLSA (the federal minimum wage/overtime law), employees may be exempt under the administrative exemption if:

They are compensated on a salary or fee basis of at least $684 per week;
Their primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
Their primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

New York Administrative Exemption

Under New York State law, employees can be exempt from minimum wage and overtime requirements if:

Their primary duties consist of the performance of office or non-manual field work directly related to management policies or general operations of the employer;
They customarily and regularly exercise discretion and independent judgment;
They regularly and directly assists the employer or an executive employee, or perform, under only general supervision, work along technical or specialized lines that requires special training, experience or knowledge; and
They receive a sufficient weekly salary*.

*The weekly salary threshold now depends on geographic location within New York State. For more, see 2023 New York Minimum Wage.

Summary

Some of the areas in which employees eligible for the administrative exemption may work include: finance, accounting, purchasing, marketing, research, human resources, IT, and legal. But not all employees in these areas are eligible for exemption.

The administrative exemptions only apply to certain employees whose actual job situations meet the requirements. Job titles do not automatically determine exemption, nor does the fact that the employee receives a salary.

Employers should periodically review employees’ job duties to determine whether they qualify for exemption.

In addition, employers must consider whether an employee’s salary remains high enough to qualify for the exemption. Under New York law, the threshold is increasing annually, and at higher rates in some parts of the state. Remember that it is not enough to satisfy the federal salary threshold. When the New York threshold is higher, the employee would need to receive the higher salary level to be fully exempt (unless a different New York state exemption applies).

Read about the New York State and FLSA Professional Exemptions here.

Read about the New York State and FLSA Executive Exemptions here.

Check out my Employment Law Dictionary here!

July 12, 2017

Executive Exemption – A Quick Guide for New York Employers

Most New York employers are subject to both federal and state minimum wage and overtime requirements. In most cases, this means the employer must pay its employees at least the minimum wage for all hours worked and time-and-a-half for hours over 40 in a week. There are, however, many exceptions to these requirements. This post addresses the executive exemption under both the FLSA and New York law.

(Click here for A Quick Guide of the New York State and federal Professional exemptions.)

(Click here for A Quick Guide of the New York State and federal Administrative exemptions.)

FLSA Executive Exemption

Despite the name, the “executive” exemption does not necessarily apply to all executives in a company. In fact, it often applies to employees who are not company executives.

Under the FLSA (the federal minimum wage/overtime law), employees may be exempt under the executive exemption if:

They are compensated on a salary or fee basis of at least $684 per week;
Their primary duty is management of the enterprise or of a customarily recognized department or subdivision of it;
They customarily and regularly direct the work of two or more other employees; and
They have the authority to hire or fire other employees or their suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

New York Executive Exemption

Under New York State law, employees can be exempt from minimum wage and overtime requirements if:

Their primary duties consist of management of the enterprise or a subdivision of it;
They customarily and regularly direct the work of two or more other employees;
They have the authority to hire, promote, advance, or fire other employees, or to effectively recommend such actions;
They customarily and regularly exercise discretionary powers; and
They receive a sufficient weekly salary*.

*The weekly salary threshold now depends on geographic location within New York State. For more, see 2023 New York Minimum Wage.

Summary

The executive exemptions only apply to certain employees whose actual job situations meet the requirements. Job titles do not automatically determine exemption, nor does the fact that the employee receives a salary.

Employers should periodically review employees’ job duties to determine whether they qualify for exemption. For example, employees who previously supervised multiple employees, but now only supervise one, will no longer qualify for the executive exemption.

Read about the New York State and FLSA Professional Exemptions here.

Read about the New York State and FLSA Administrative Exemptions here.

Check out my Employment Law Dictionary here!