Question: I sent a non-exempt employee on an overnight trip. On their return the next day, the employee’s plane was delayed and they were stuck on it until 7:00 PM. They normally work 9:00 AM – 5:00 PM, but want to be paid for the extra 2 hours. Do I owe it to them?
Answer: Not under Federal or Massachusetts law, but yes under New York law. Under federal and Massachusetts law, if an employee is required to travel to a different location other than his/her regular work site and an overnight stay is involved, the employer need only compensate the employee for travel time that falls within the employee’s regular working hours. Under New York law, by contrast, all of the travel time would be compensable.
FLSA regulations provide that, where a temporary assignment involves an overnight stay, the travel counts as hours worked where it occurs during the employee’s regular workday (on the theory that the employee is substituting travel for other work duties). Travel time that takes place during normal working hours on a day off (such as on Saturday or Sunday) also counts as hours worked. Thus, for example, as the regulations explain, if an employee regularly works from 9:00 AM – 5:00 PM from Monday through Friday, travel time during these hours on Saturday and Sunday (minus usual meal time) counts as hours worked. Though this rule derives from a FLSA regulation, 29 C.F.R. § 785.39, it is expressly incorporated in the Massachusetts regulation. 455 C.M.R. § 2.03(4)(c).