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Salaried Overtime - CA California

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  • Salaried Overtime - CA California

    I work as a salaried employee, plus commission. I am a recruiter for a pest control company based in S. CA. I recruit in Utah and Idaho M-F about 4 months out of the year. I work 12 to 17.5 hour days during this time. I believe I am non-exempt. My day consists of driving to the airport, catching a flight and working all day into the evening. At times, I have a 4 hour drive to get between work sites. Other days I have a 1 hour drive to get to "work" because my employer wants to save money on a hotel, so I stay with a friend.

    I get paid a salary that is not based on a contract, and I receive a commission for every individual that I recruit. I use a company vehicle with paid gas while in UT. I receive $5/lunch and $10/dinner. My flights to and from are also paid for by the company.

    My question is, what part of my day is defined as "work"? Am I eligible for overtime during flights and drive times? I do not receive any overtime currently. Am I obligated to work a 10+ hour day after arriving to my destination on days that I fly? For a salaried + commission employee what is considered a full work day? Is it still 8 hours? Or is it something that should be defined in a contract?

  • #2
    Read thru this


    § 785.33 General.
    The principles which apply in deter-mining whether or not time spent in travel is working time depend upon the kind of travel involved. The subject is discussed in §§ 785.35 to 785.41, which are preceded by a brief discussion in § 785.34 of the Portal-to-Portal Act as it applies to traveltime.

    § 785.35 Home to work; ordinary situation.
    An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.

    § 785.37 Home to work on special one-day assignment in another city.
    A problem arises when an employee who regularly works at a fixed location in one city is given a special 1-day work assignment in another city. For example, an employee who works in Washington, DC, with regular working hours from 9 a.m. to 5 p.m. may be given a special assignment in New York City, with instructions to leave Washington at 8 a.m. He arrives in New York at 12 noon, ready for work. The special assignment is completed at 3 p.m., and the employee arrives back in Washington at 7 p.m. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer’s benefit and at his special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the ‘‘principal’’ activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call (de-scribed in § 785.36), or like travel that is all in the day’s work (see § 785.38). All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to his regular work site, the travel between his home and the railroad depot may be deducted, it being in the ‘‘home-to-work’’ category. Also, of course, the usual meal time would be deductible.

    § 785.38 Travel that is all in the day’s work.
    Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to an-other job which he finishes at 8 p.m. and is required to return to his employer’s premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of re-turning to his employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked. (Walling v. Mid-Continent Pipe Line Co., 143 F. 2d 308 (C. A. 10, 1944))

    § 785.39 Travel away from home community.
    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. The employee is simply substituting travel for other duties. 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 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an air-plane, train, boat, bus, or automobile.

    "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)


    • #3
      And what ArmyRetCW3 gave you was the federal law. California actually considers ALL time while travelling on company business as hours worked and therefore compensable:
      See Section 46 here (it starts on page 166):

      Note to other readers: This is true ONLY in California.
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