In a BLR webinar entitled "Travel Pay: Proven Strategies for Avoiding the Next Big Wave of Wage and Hour Lawsuits," Mark E. Tabakman, Esq., partner in the nationwide law firm Fox Rothschild, LLP described the scenarios by which overnight travel for work would be compensable work time.

• Travel that keeps an employee away from home overnight is designated as "travel away from home" by the Wage and Hour Division regulations (29 CFR 785.39). Travel away from home is paid work time when it "cuts across the employee's workday." This is because the employee is deemed to be simply substituting travel for other duties. The time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on nonwork days. The Wage and Hour Division, however, does not consider time spent traveling away from home outside of regular working hours as a passenger on a plane, train, boat, or bus as paid work time.
• If an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is work time on Saturday and Sunday as well as on the other days. Regular meal period time is not counted as work time. For example, if an employee who normally works 9 a.m. to 5 p.m. from Monday through Friday is a passenger on a plane departing for San Francisco at 9 a.m. on a Saturday, his time spent traveling is work time because it cuts across his normal working hours. It does not matter that Saturday is not a normal workday. However, if the plane departed at 6 p.m. instead, his travel time would not be counted as paid work time because he would be traveling outside of normal working hours.
• If an employee is offered public transportation but requests permission to drive his or her car instead, the employer may count as hours worked either the time spent driving the car or the time it would have had to count as hours worked if the employee had used the public transportation (29 CFR Sec. 785.40). For example, if an employee chooses to drive her car to Philadelphia, a six-hour trip, instead of taking the train, which takes just four hours, the employer may treat as work time either four hours or six hours. Employees who are expected to use their personal vehicles for company business should be required to show proof of insurance coverage and to keep accurate and detailed records (time, date, duration, purpose).
• If an employee is required to drive his or her car, the employer must count all time spent en route as hours worked regardless of whether or not the hours were normal working hours.

Mark E. Tabakman, Esq. is a partner in the nationwide law firm Fox Rothschild, LLP (www.foxrothschild.com). He advises clients throughout the country on all aspects of labor relations and employment law, as well as the development of corporate employment policies. Also, he publishes and maintains a wage-hour blog to provide the latest information and observations on new developments in wage-hour law.