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Overnight Travel for Part-Time Work-from-Home Employee Indiana

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  • Overnight Travel for Part-Time Work-from-Home Employee Indiana

    I am an hourly, part-time employee who normally works from home. I do not have a set work schedule. For the most part, I can complete my hours at any time during the week, although I do have required conference calls and client phone calls that are scheduled.

    Beginning next month, I will have to travel overnight approx. once per week to customer sites. Basically I will fly in in the morning for a meeting with the client that afternoon, stay overnight in a hotel, perform installation/implementation/testing the following day and travel home that afternoon. Occasionally I will have to share a hotel room with another employee. I am being told my boss that the travel time is non-compensable (?sp) and that only the actual hours I spend in the meeting or performing the install will be paid.

    It seems unfair to not get paid at all for the travel. I don't have a choice as to not travel, and I don't have the option to not stay overnight. I am spending two full days, but only getting paid for two half-days. The hotel "roommate" thing is awful too.

    I have reviewed the DOL regulations but they don't seem applicable since I am not full-time and do not have regular, set work hours or commute time. There is basically no such thing for me as "travel time that cuts across the normal work day." However, the DOL seems clear that some portion of travel time is compensable since they have regulations stating so.

    Any advice for my situation?
    THanks, Reena

  • #2
    File a claim for unpaid wages with the DOL if you are not being compensated for hours worked.

    There is no legal requirement that you get your own hotel room.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

    Comment


    • #3
      Thank you for the prompt reply

      I realize the hotel thing is not illegal. I was just venting about that, insult to injury and all, but its not a big deal and it doesn't sound like it will happen very much. I realize its pretty common.

      I really like my boss and I love my job so I don't want to rock the boat about not getting paid for travel unless its definately illegal. That's where I was having trouble with the DOL rules because nothing is exactly applicable. So I can't say... according to DOL Rule XXX, my travel time has to be paid. To me, it looks like that what the rules say and the different rules just help figure you out how to calculate "hours worked" under different scenarios... ie, travel to different job sites or travel all in one day.

      So a follow-up question would be: what rule would be the most applicable if I were to tell my boss its illegal to not pay for travel time? (I think its better to talk to my boss and work it out and not go straight to the DOL0

      On the other hand if its not illegal, that's a different issue and I just have to suck it up, I guess.

      Thank you again for the help.

      Comment


      • #4
        Not really going to address the legal aspect because I can't help you there, but will give you something to think about since I also work from home (although I am exempt salaried)......usually working from home is considered a perq and allows for some flexibility that is a benefit to you. I would forgo lots of things to continue to be able to do so personally (especially since I also have a great job and great bosses)

        If you had to go to an office each day of the week and commute both ways, how much time would that take and how does it compare to your travel time on your overnight stays? How many hours do you actually get paid for now and will get paid for after the change (not taking into account the travel time)? Can you do any work while traveling on the plane or sitting at the airport instead of from home so that you lessen the hours at home and increase the work hours while traveling? Just a shift in perspective more than any legal advice.

        Comment


        • #5
          The work from home thing as a perk doesn't apply to me (almost our whole company works from home) but I totally get what you are saying.

          That is why I am trying to get clarity as to what the law says/means. If what my boss suggests is not illegal, I would probably let it go because your right, in the grand scheme of things, I have a job I love and working from home is awesome and my work allows alot of flexibility. But if I worked in an office instead of from home, then would my travel time have to be paid? Because that does not seem fair.

          I estimate that each trip would involve about 8 hours of travel time and 8 hours of work time, so roughly half the time would be travel. Right now I work about 10-12 hours per week (some times a little more some times a little less). If it was only going to be once in a while, I probably would not even raise the issue for exactly the reasons you stated, but we will be doing these upgrades almost every week. Adding 8 hours per week of unpaid time is a lot when you work 20 hours a week or less.

          Your idea about doing rest of the week's work on the plane or airport is a good one. I could certainly do some of it that way. Some of it requires a secure connection thoug so I'm not sure I could use airport wifi for that. But some of it, sure I could.

          THank you for the perspective and the ideas. Very helpful.

          Comment


          • #6
            The problem is this:
            - If you are Exempt (and Salaried), then hours worked is not legally an issue.
            - If you are non-exempt, then you are subject to the 29 CFR 785 regulations on hours worked. The travel regs are 785.33-785.41, and the reg specific to your situation is 785.37. While you may feel that you do not have a fixed schedule, that is not how the regulation is worded. DOL will just use standard working hours of maybe 9-5, and apply the regulation.
            http://www.law.cornell.edu/cfr/text/29/785.37
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

            Comment


            • #7
              Thank you very much. But do you not mean this section, since overnight travel is involved? http://www.law.cornell.edu/cfr/text/29/785.39

              Would your statement regarding the regular work hours still apply?

              Comment


              • #8
                Agreed. Good catch.

                I can never be certain how DOL will rule, but there is no intent in that federal regs that overnight travel is inherently paid time. Now if you could prove that "regular" time worked for this employee is nighttime and the travel occurred at night, you have a possible argument. Any argument must comply with this regulation set.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

                Comment


                • #9
                  THank you. Can you clarify your remarks to help me understand? The travel would generally take place during the day on mornings and afternoons. In terms of work hours, because I work so few hours during the week, my hours are all over the place: weekdays, weekends, evenings. I do not have a regular, set schedule that I adhere to week after week.

                  I am looking for some guidelines or as close as possible to a yes/no answer on the travel time so I can have a discussion with my boss. I am not looking to file a DOL complaint.

                  Thanks, Reena

                  Comment


                  • #10
                    Your question orignally stated that the travel will take place over night. You are now changing that to the morning and afternoon, so I am no longer sure if other facts have changed. Assuming that we are still talking about overnight travel, then the 785.39 rule states Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. So the key is defining exactly when your workday is (and hopefully the employer agrees), and seeing if the travel occurs during the workday or not.

                    Past that, 785.39 is the out-of-town travel rule, but it is generally useful to look at the entire travel regulation workset 785.33-785.41 (DOL will). All regs always apply, not just one or two that seem to say something useful.

                    Most states follow the federal DOL regs on travel as is. CA is the major exception.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      It may help to break down your over night travel days and go thru step by step as to any applicable guidance in the FLSA regs cited by DAW .

                      if you like your job..you need not rush to raise any issues with boss...you have a reasonable amount of time to stew or research .point and still file a timely claim

                      Here are some points I would check...some might not apply ..
                      1. Part time status is not critical but non exempt hourly paid sure is.. Generally if paid hourly that's key but it can get fuzzy if one is a technical professional as in IT ...so cross check.

                      IF hourly then check,

                      2. I do not think there are any special regs as to home office vs a very near by office ...but haven't looked in a while either. As to counted travel time ..your normal commute does not count ..cbg may commute 125 minutes each way, for a while my daily commute was 100 minutes each way, my spouse had a commute
                      Of 2 minutes each way if she walked slowly ...if your normal commute is 30 seconds..so be it. On a long trip , if we were non exempt, CBG and I would not count about 4 hours ..you and my spouse cut off far less.
                      2.1 Your regular fixed place of business for FLSA purposes might not the the same as your place of employment for tax purposes...do not get sidetracked ..focus on FLSA.

                      3. Nothing is ever simple and you need to check original source not just a summary ...time as a passive passenger in a plane may not count ..but if on your iPad or phone with clients or employer that time may count . Time sitting in a terminal..may differ,

                      4. Time for a decent a sleep does not count..but apparently you need 5 hours of uninterrupted sleep...if you need to address clients around 6 time zones and employer and never get 5 hours in a clean stretch it may ALL count.

                      5 A meal time of 30 + minutes completely relieved of all duties does not count as hours??you need not leave premises...Just be free.. A coke and dry sandwich while sitting watching machine cycle or down load and on phone to service center at same time does not count as being free.

                      6 If you are completely free to wander about 4 hours in the afternoon..sorry, that time does not count as I understand it ..but double check me.

                      Comment


                      • #12
                        Originally posted by DAW View Post
                        Your question orignally stated that the travel will take place over night. You are now changing that to the morning and afternoon, so I am no longer sure if other facts have changed. Assuming that we are still talking about overnight travel, then the 785.39 rule states Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. So the key is defining exactly when your workday is (and hopefully the employer agrees), and seeing if the travel occurs during the workday or not.

                        Past that, 785.39 is the out-of-town travel rule, but it is generally useful to look at the entire travel regulation workset 785.33-785.41 (DOL will). All regs always apply, not just one or two that seem to say something useful.

                        Most states follow the federal DOL regs on travel as is. CA is the major exception.
                        THank you. I did not mean to confuse. By "overnight travel," I meant travel away from home requiring an overnight stay, not that the actual travel would take place overnight. My original post stated that I would be flying in the mornings and afternoons of the following day. No facts have changed.

                        New question: if I am going to be regularly following this schedule of travel and meetings (just away from home vs. from home), does that establish regular work hours? Or does it onlly count what I usually worked in the past?

                        THank you, Reena

                        Comment


                        • #13
                          You determine what your standard schedule is. Hopefully you and your employer agree. If not, DOL will make up the schedule for you. And then you just follow the regulation. Example. If your schedule is 8-5, then under the "overnight" regulation, travel during those times is hours worked and travel outside those times is not. The other obvious question is just which regulation is in play. Again, if you and the employer do not agree, then DOL will decide.
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

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