Sending a non-exempt employee on a business trip raises the tricky question of how much of the employee’s down time, sleeping time, or waiting time during the trip is compensable and counts as hours worked under the Fair Labor Standards Act (FLSA). The short answer is: the employee does not have to be credited or compensated for time which the employee would otherwise not be just because the employee is out of town. Instead, whether time is compensable depends on how the employee is allowed to spend his or her down time. Down time which is spent “engaged to wait” is compensable, but time spent “waiting to be engaged” is not.
An employee is “engaged to wait” and therefore on the clock during down time when the employee is only able to leave the work premises for an unpredictable or short period, and is not able to use that time for his or her own purposes. For example, a short break between a travelling employee’s presentations or meetings is likely compensable, since the employee is unable to effectively use that break time for his or her own purposes.
An employee is “waiting to be engaged” and does not need to be compensated when the employee is completely relieved of all duties and responsibilities, is told in advance that he or she will have free time, is told in advance that work will not resume until a specified time, and has a long-enough break period to use the period effectively for his or her own purposes. For example, an employee who spends time relaxing in a hotel or eating a non-working meal during a business trip does not need to be compensated for that time. Nor does an employee need to be compensated for time spent sleeping during a business trip, unless the employee is “on call” during that sleep period.
Of course, all time that the employee spends actually performing work for the employer counts as compensable hours worked. For example, time that an employee spends in a hotel room preparing for a presentation or meeting is compensable, as is time spent attending a dinner with a client at the request of the employer.
Determining whether the employee was engaged to wait or waiting to be engaged requires a careful analysis of all of the circumstances, the nature of the service, and its relation to the down time.
For any questions about this or any other wage and hour issue, please contact a member of our Employment Law Group.