FLSA Q & A

By Eleanor A. Evans, Esq. CAPLAW

Question: Our CAA wants a nonexempt employee to attend aconference in a distant state. She does not want to fly; instead, she wants to drive her own car and is willing to take vacation for the extra days required. Do we have to treat her driving time as hours worked under the federal Fair Labor Standards Act (FLSA)?

Answer: No. According to the U.S. Department of Labor’s (DOL) FLSA regulations, your CAA need only count the hours that would have been counted if the employee had taken the option offered to fly.

     The DOL FLSA regulations provide that “If an employee is offered public transportation but requests permission to drive his car instead, the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during
working hours if the employee had used the public conveyance.”(1) Therefore, your CAA can choose to count only the hours it would have had to count as hours worked during regular working hours if the employee had flown.

       Travel by any means (by car, plane, train etc., as a driver or a passenger) during regular working hours (including on weekend days during the hours the employee would normally have worked during the week, even if the employee does not normally work on weekends) is
considered hours worked. Travel as a passenger outside of those hours is not counted as hours worked, but travel as a driver is.(2) If the employee actually performs work while riding as a passenger (e.g., does paperwork on the plane), the time the employee spends working must
be counted as hours worked.

       According to Lawrence McGoldrick, an attorney with the national employment law firm Fisher & Phillips, to determine what the hours your CAA would have had to count as hours worked had the employee flown, your CAA needs to research the flight times. To be on the conservative side, you could assume that all of the travel would have been during regular working hours. On the other hand, if your CAA would have required the employee to fly some of the time in the early pre-work hours, or in the late post-work hours, you could exclude those hours.

       Mr. McGoldrick also points out that your CAA can exclude the time the employee would have spent driving between home and the airport (in both directions). On the other hand, he notes, given the new requirements to arrive at airports early for flights (for screening, etc.), it would be wise to count the approximate normal time the employee would have been required to wait at the airport for the departing flights (unless that time would have been outside of the regular working hours).

      Note that if the employee had been required to drive on this trip, then all of the driving time would be hours worked except for bona fide meal periods. Also, one-day trips, with no overnight stay, have their own rules.(3)

1 29 C.F.R. § 785.40.
2 See 29 C.F.R. §§ 785.39 and 785.41.
3 See 29 C.F.R. § 785.37.