Hours worked: time spent traveling on an out-of-town business trip
STATE OF CALIFORNIA GRAY DAVIS, Governor
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
LEGAL SECTION
320 W. 4th Street, Suite 430
Loe Angeles, CA 90013
( 213) 097-1511
ANNE STEVASON. Acting Chief Counsel
February 21, 2002
James S. Blythe
4744 Ben Avenue, No. 3
Valley Village, CA 91607-3957
Re: Whether Time Spent Traveling on an Out-of-Town Business
Trip Constitutes "Hours Worked"
Dear Mr. Blythe:
This is in response to your letter of June 16, 2001, in which
you inquired as to whether you are entitled to be paid for time
spent traveling to and from an out-of-town, overnight business
trip in connection with a training class that your employer
required you to attend. The facts that you presented are as
follows: You are a non-exempt employee, you work in California,
and the training class was in San Antonio, Texas. The classes
were held during normal work hours on Monday and Tuesday. All of
the travel took place outside your normal work hours of Monday to
Friday, 9:00am to 5:30pm. You traveled from California to Texas
on the preceding Saturday, from 11:15pm to 6:30pm PDT, you spent
Sunday sightseeing in San Antonio, and you returned from Texas to
California at the conclusion of the training on Tuesday evening,
from 6:00pm to 1:00am (Wednesday morning) CDT. On the trip to
Texas, you spent a half hour eating lunch, and on the return trip
you spent a half hour eating dinner. Your travel plans had been
approved by your supervisor.
You state that you expected to be paid for the time spent
traveling outside your normal work hours, less the meal time
while traveling. Specifically, you expected to be paid 6.75
hours for your travel on Saturday, and 6.5 hours for your travel
on Tuesday evening. However, after you returned from this trip,
your employer informed you that none of your travel time to and
from San Antonio would be paid, pursuant to your company's staff
manual which provides, "Time spent traveling as a passenger on a
plane, train, bus, car, or taxicab to a business destination
outside your normal business hours is not considered to be paid
time." You seek an opinion as to whether this company policy
conforms with California law. As discussed below, this policy
violates California law in that the time spent traveling to and
2002.02.21
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James S. Blythe
February 21, 2002
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from a business meeting or other event where attendance is
required by the employer constitutes hours worked, whether or not
the travel takes place during regular work hours, and whether or
not the business trip includes an overnight stay.
Initially, we note that the question you presented would be
answered differently under federal law. Under federal
regulations adopted by the Secretary of Labor pursuant to
authority granted by the Fair Labor Standards Act (FLSA), "travel
that keeps an employee away from home overnight ... is clearly
worktime when it cuts across the employee's workday. . . . The
time is not only hours worked on regular working days during
normal working hours but also during the corresponding hours on
non-working days. Thus, if an employee regularly works from 9am
to 5pm from Monday through Friday, the travel time during these
hours is worktime on Saturday and Sunday as well as on the other
days. ... As an enforcement policy the [U.S. Department of
Labor] will not consider as worktime that time spent in travel
away from home outside of regular working hours as a passenger on
an airplane, train, boat, bus or automobile." (29 CFR §785.39)
However, under the federal regulations, "any work which an
employee is required to perform while traveling must, of course,
be counted as hours worked. An employee who drives a truck, bus,
automobile, boat or airplane" in contrast to a passenger, "is
working while riding." (29 CFR §785.41) Also, the federal
regulations provide that travel outside of normal work hours on a
special one day assignment to another city must be counted as
worktime. (29 CFR §785.37) Thus, under these federal
regulations, some, but not all, of the travel time in connection
with your trip to San Antonio would constitute compensable
worktime.
State wage and hour law differs in many respects from
federal law, including in the extent to which various activities
are treated as "hours worked" under state law, or as compensable
worktime under federal law. The federal FLSA provides the floor
below which no employer may go, but when California law provides
greater protections to employees, the more protective provisions
of California law will apply. Morillion v. Royal Packing Co.
(2000) 22 Cal.4th 575; See also Ramirez v. Yosemite Water Co.
(1999) 20 Cal.4th 785. Every one of the industrial and
occupational orders adopted by the California Industrial Welfare
Commission (IWC) defines "hours worked" to include "the time
during which an employee is subject to the control of an
employer" and "all the time the employee is suffered or permitted
to work, whether or not required to do so." As the California
Supreme Court held in Morillion, compulsory travel time
constitutes time during which the employee is "subject to the
control of an employer" and thus constitutes compensable "hours
worked," whether or not the employees are free to read a
newspaper or engage in other personal pursuits while riding in a
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bus as passengers. And as the Supreme Court observed in both
Ramirez and Morillion, federal regulations which have no
counterpart in state law, and which would have the effect of
undercutting protections provided by state law to employees, do
not apply and will not be used to interpret state law.
The state law definition of "hours worked" does not
distinguish between hours worked during "normal" working hours or
hours worked outside "normal" working hours, nor does it
distinguish between hours worked in connection with an overnight
out-of-town assignment or hours worked in connection with a one-
day out-of-town assignment. These distinctions, and the
treatment of some of this time as noncompensable, are purely
creatures of the federal regulations, and are inconsistent with
state law.
Under state law, if an employer requires an employee to
attend an out-of-town business meeting, training session, or any
other event, the employer cannot disclaim an obligation to pay
for the employee's time in getting to and from the location of
that event. Time spent driving, or as a passenger on an
airplane, train, bus, taxi cab or car, or other mode of
transport, in traveling to and from this out-of-town event, and
time spent waiting to purchase a ticket, check baggage, or get on
board, is, under such circumstances, time spent carrying out the
employer's directives, and thus, can only be characterized as
time in which the employee is subject to the employer's control.
Such compelled travel time therefore constitutes compensable
"hours worked." On the other hand, time spent taking a break
from travel in order to eat a meal, sleep, or engage in purely
personal pursuits not connected with traveling or making
necessary travel connections (such as, for example, spending an
extra day in a city before the start or following the conclusion
of a conference in order to sightsee), is not compensable.
It should be noted that our analysis of California law is
consistent with the long-standing policies of the Division of
Labor Standards Enforcement. In February 21, 1984, then State
Labor Commissioner C. Robert Simpson, Jr. reasoned that "the
Industrial Welfare Commission orders require that time spent
traveling during either regular working hours or in addition to
the regular working hours, if such travel is done pursuant to the
employer's instructions, is considered worktime," and "is
considered hours worked even if no productive work is performed."
(DLSE Interpretive Bulletin No. 84-6-Rev.)
The fact that your company policy purports to treat certain
time spent traveling to a required out-of-town meeting or class
as unpaid time cannot, of course, override the requirements of
state law. If time constitutes "hours worked* under state law,
that time must be paid. The rate at which it must be paid
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depends upon the nature of your compensation agreement. If your
employer has agreed to pay you a fixed hourly rate of pay for any
work performed, then travel time must be paid at that regular
hourly rate, or, if applicable, the required overtime rate based
upon that regular rate. Likewise, if you are a non-exempt
salaried employee, state law expressly provides that your salary
only compensates you for non-overtime hours, i.e, for hours
worked up to 8 in a day and up to 40 in a week. Hours worked in
excess of 8 in a day or 40 in a week must be compensated at- the
applicable overtime rate, which must be computed by converting
the weekly salary to an hourly rate, which is defined as l/40th
of the weekly salary. (See Labor Code §515)
If you are an hourly paid employee, your employer can
establish a separate rate for travel before the work is
performed, provided that no rate of pay can fall below the state
minimum wage. Under state law, the obligation to pay no less
than the minimum wage attaches to each separate hour, or part of
each hour worked.
Also, all necessary expenses incurred in connection with
employer required travel must be reimbursed to the employee,
pursuant to Labor Code §2802, which provides: "An employer shall
indemnify his or her employee for all necessary expenditures or
losses incurred by the employee in direct consequence of the
discharge of his or her duties, or of his or her obedience to the
directions of the employer. ..."
Thank you for your patience in awaiting a response to your
letter, and for your interest in California wage and hour law.
Feel free to contact us with any other questions.
Sincerely,
Anne' Stevason
Acting Chief Counsel
AS/mel
cc: Art Lujan
Tom Grogan
Assistant Chiefs
Bridget Bane, IWC
Legal Sections
2002.02.21