Does an employer have to pay a non-exempt employee for travel time if the travel keeps the employee away from home overnight?
It depends on when the travel occurs. Federal regulations define “travel away from the home community” as “travel that keeps an employee away from home overnight.” 29 C.F.R. § 785.39. This travel time counts as compensable hours worked when it occurs during an employee’s regular work hours on regular working days and during non-regular working days. Thus, if an employee regularly works from 8:00 a.m. to 4:00 p.m., Monday through Friday, the employer must pay for travel away from home between the hours of 8:00 a.m. and 4:00 p.m. on any day of the week.
Employers do not have to pay for travel time away from home outside of regular working hours if the employee spends that time as a passenger on an airplane, train, bus, or the like, and does not perform any work. However, employers are required to pay for travel time away from home and outside of regular working hours if the employee must drive a vehicle for that travel.
Takeaway: Employers should be cognizant of when non-exempt employees are traveling for overnight travel to ensure that employees are paid correctly under the Fair Labor Standards Act (FLSA). Employers should also keep in mind that employees must be paid if they perform work while traveling, regardless of the travel time rules.