Category: Wage & Hour

Employee Travel Time

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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New York Meal Period

Got Lunch? A Primer on the New York Meal Period Requirements

The federal Fair Labor Standards Act does not require employers to give their employees time off for lunch, dinner, etc. However, many states impose such requirements. Here’s a helpful reminder about the New York meal period rules.

Standard New York Meal Period

Every person employed in or in connection with a factory must be allowed at least an hour for the “noon day meal.” If a factory employee works a shift of 6 or more hours that starts between 1:00 p.m. and 6:00 a.m., then they must also be allowed an hour meal period in the middle of the shift.

Employees other than those employed in or in connection with a factory must be allowed at least 30 minutes for the “noon day meal” if they work a shift of at least 6 hours that includes the hours from 11:00 a.m. to 2:00 p.m.

If a non-factory employee works a shift of 6 or more hours that starts between 1:00 p.m. and 6:00 a.m., then they must be allowed a meal period of at least 45 minutes in the middle of the shift.

Additional Meal Period for All Employees

Any employee who works a shift that starts before 11:00 a.m. and ends after 7:00 p.m. must be allowed an additional meal period of at least 20 minutes between 5:00 and 7:00 p.m.

Exempt Employees Included

The New York meal period requirements apply to all employees, including those exempt from minimum wage and overtime.

One Employee Shift Exception

In most cases, employees must be completely relieved from duty during the applicable meal periods. Accordingly, eating while working at one’s desk does not count as taking a meal period. And the burden and obligation is on the employer to ensure that each employee receives the required meal period. Usually, the employee cannot consent to forego lunch.

However, in very limited situations where there is only one employee on duty, the New York Department of Labor may permit an employee to voluntarily agree to take their required meal period while still on duty. This is principally recognized in the retail context, where an employee may be able to sit and eat behind a sales counter largely uninterrupted for much of the meal period. Even in these situations, an employee must be permitted to have a completely uninterrupted meal period upon request.

Shorter Meal Periods Permitted

As an enforcement matter, the NYSDOL permits any meal period to be shortened to no less than 30 minutes if there is no indication of hardship to employees.

The DOL may allow shorter meal periods of not less than 20 minutes only in special or unusual cases. This requires an investigation by the DOL and issuance of a special permit.

A New York Meal Period May Be Unpaid

The New York meal period law only requires that employees be relieved of duty to relax and eat. It does not require the employer to pay employees during that time. However, if, such as the case of the one employee shift exception, the employee is not fully relieved from duty, they must be paid for the time even if they eat while working.

Notably, the New York meal period law does not require employers to give employees any further breaks during their shift. However, if employees take breaks of less than 20 minutes during their shift, that break time must be included as hours worked and paid accordingly.

Most employers should require hourly employees to clock in and out (by some method or another) before and after unpaid meal periods, but not around breaks. In all cases, it is the employer’s obligation to have accurate time records showing actual time worked, especially for non-exempt employees. In the event of an audit by the NYSDOL, it is also important to specifically be able to show that employee receive the required New York meal periods.

Check out these other articles about important New York-specific employee requirements:

Are You Complying with New York Wage Notice Requirements?

New York Paid Family Leave Regulations Now Final

Hiring Your First Employee in New York

Exempt Employees

How Much Should Exempt Employees Get Paid?

One of 2016’s hot topics in employment law was how high the salary threshold for FLSA exemption would increase? In other words, how much would employer have to pay exempt employees to keep them exempt? It’s mid-2017, and the question hasn’t gone away!

The U.S. Department of Labor initially answered that question with a $913/week salary requirement. That threshold would then change every three years based on average salary levels.

However, a federal court in Texas stopped the new salary rule before it took effect. That case remains on appeal, but the Department of Labor–now under a Republican administration–has indicated it will not fight to uphold the $913/week standard. Instead, the DOL has announced that it will review the relevant rules and establish a new test.

On July 26, 2017, the DOL issued a Request for Information seeking information related to the FLSA exemption rules. In particular, the DOL refers to the executive, administrative, professional, outside sales, and computer employee exemptions.

What Tests for Exempt Employees?

Based on the Request for Information, it looks like the DOL is open to reviewing all aspects of the exemptions. This includes not only the salary level for exempt employees, but also the duties tests.

Here are some of the specific questions the DOL is asking:

  1. Would updating the 2004 salary level ($455/week) for inflation be an appropriate basis for setting the standard salary level and, if so, what measure of inflation should be used?
  2. Should the regulations contain multiple standard salary levels? If so, how should these levels be set: by size of employer, census region, census division, state, metropolitan statistical area, or some other method?
  3. Does the standard salary level set in the 2016 Final Rule ($913/week) work effectively with the standard duties test or, instead, does it in effect eclipse the role of the duties test in determining exemption status?
  4. To what extent did employers, in anticipation of the 2016 Final Rule’s effective date on December 1, 2016, increase salaries of exempt employees in order to retain their exempt status, decrease newly non-exempt employees’ hours or change their implicit hourly rates so that the total amount paid would remain the same, convert worker pay from salaries to hourly wages, or make changes to workplace policies either to limit employee flexibility to work after normal work hours or track work performed during those times?
  5. Did employers make any additional changes, such as reverting salaries of exempt employees to their prior (pre-rule) levels, after the preliminary injunction was issued?
  6. Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test?
  7. Does the salary level set in the 2016 Final Rule exclude from exemption particular occupations that have traditionally been covered by the exemption and, if so, what are those occupations?
  8. Should there be multiple total annual compensation levels for the highly compensated employee exemption?
  9. Should the standard salary level and the highly compensated employee total annual compensation level be automatically updated on a periodic basis to ensure that they remain effective, in combination with their respective duties tests, at identifying exempt employees?

Help the DOL Get it Right

The DOL will accept public comments on the Request for Information until September 25, 2017. Anyone can submit information related to these issues affecting exempt employees. You can expect prominent employee, labor, and business groups to do so.

I am currently considering submitting comments based on my experience representing employers in employee classification and overtime for more than a decade. If you have any information that you would like to share in connection with my preparation of those comments, please email me.

DISCLAIMER: No attorney-client relationship will be created by you emailing me information! If you need legal representation, whether in connection with employee exemption issues otherwise, please speak with me (or another attorney of your choice) before sending confidential information.