The FLSA Maze and Travel Time Elizabeth M. Welch Welch Law, PLC West Michigan Chapter The FLSA Maze and Travel Time Elizabeth M. Welch Welch Law, PLC

West Michigan Chapter Agenda Fair Labor Standards Act 101 Who is exempt/non-exempt What is “hours worked” When is “travel time” “hours worked” Mileage Per Diem Why it matters Questions

Everyone who isn’t exempt! West Michigan Chapter Who is non-exempt? Everyone who isn’t exempt! Executive Administrative Professional Outside Sales Computer

Exempt from Overtime: Executive Employees West Michigan Chapter Exempt from Overtime: Executive Employees Primary Duty: management Supervision: 2 or more Authority to hire/fire Compensation: At least $455 per week

Administrative Employees West Michigan Chapter Exempt from Overtime: Administrative Employees Primary Duty: office or non-manual work directly related to business operations Exercises discretion and independent judgment on matters of significance Compensation: At least $455 per week

Professional Employees West Michigan Chapter Exempt from Overtime: Professional Employees Primary Duty: Work requires knowledge of an advanced type; typically prolonged specialized instruction Exercises discretion and independent judgment on matters of significance Compensation: At least $455 per week

Outside Sales Employees Highly Paid Employees ($100,000) West Michigan Chapter Exempt from Overtime: Other Categories: Outside Sales Employees Highly Paid Employees ($100,000)

E Exec/Admin/Professional: Must meet above checklists AND West Michigan Chapter E Exec/Admin/Professional: Must meet above checklists AND Be Paid a Salary (improper deduction will negate exempt status)

If not salaried-exempt: Then paid hourly (min wage) for all West Michigan Chapter If not salaried-exempt: Then paid hourly (min wage) for all “HOURS WORKED” What is “hours worked”? Trouble Spots: Waiting Time Breaks Sleep Time Meals Travel Time Comp Time Donning/Doffing

West Michigan Chapter Travel Issues: Travel to/from work Travel for an emergency Travel during the work day Travel for conferences/meetings/trainings Travel outside the area for special one-day assignment Travel outside normal working area Overnight Travel

Travel to/from work: NOT TRAVEL TIME West Michigan Chapter “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 different job sites. Normal travel from home to work is not worktime.” 29 CFR §785.35 Exception: Employees must meet at work first. (Unless just convenient to carpool) Exception Again: Employees with trucks Employees may carpool in company vehicle as convenience.

Travel to/from work: NOT TRAVEL TIME West Michigan Chapter Incidental/preliminary work does not convert commute to “hours worked”: Getting job assignments Carrying equipment Loading personal equipment (gloves, hats, uniforms) Other de minimis activities conducted infrequently and hard to record.

Travel to/from work: NOT TRAVEL TIME West Michigan Chapter But some circumstances do convert commute to “hours worked”: Reporting to a remote location/site to pick up instructions, pick up equipment, or drop off cars (travel time from remote location to work site is compensable) Transporting special equipment (usually heavy equipment, not laptops / typical repair tools).

Travel to/from work: EMPLOYEES WITH TRUCKS West Michigan Chapter Travel to/from work: EMPLOYEES WITH TRUCKS Issue: Employee driving a truck which is essential to the job. Is the time driving home to work now “hours worked”?

Normal commuting area & Agreement with employee West Michigan Chapter Travel to/from work: EMPLOYEES WITH TRUCKS Solution: FLSA allows use of company vehicle by employee to commute without counting as “hours worked” if: Normal commuting area & Agreement with employee

Travel During the Work Day: “Hours Worked” West Michigan Chapter Travel During the Work Day: “Hours Worked” “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.” 29 CFR § 785.38 Includes: receiving instructions, picking up tools, moving between job sites

Travel for Emergency: West Michigan Chapter If called out to work after gone home for day and have to travel a “substantial distance to perform an emergency job . . . All time spent on such travel is working time.” 29 CFR § 785.36 (No position taken by DOL on home/work travel in this situation)

Lectures/Meetings/Trainings West Michigan Chapter Travel: Lectures/Meetings/Trainings Not “hours worked” if: Attendance outside regular work hours; Attendance voluntary; Not directly related to employee’s job; & Employee does not perform productive work while attending. Special note: apprenticeship training maybe excluded if written agreement under valid program.

West Michigan Chapter Travel: Special 1-day Assignment in Another city Employee who usually works in a fixed location given assignment out of town in another city must have all travel hours counted. Time to/from home-normal work can be deducted.

Traveling to Somewhere taking transportation: West Michigan Chapter Traveling to Somewhere taking transportation: Time spent travelling outside regular working hours as a passenger on an airplane, train, boat, bus or automobile is not “hours worked.” 29 CFR § 785.39

Travel to an assignment: West Michigan Chapter Travel to an assignment: If driving, then it counts as “hours worked” even if during non-work hours. Employee may opt to take personal vehicle but if offered public transportation, employer may count either drive time or hours would have “worked” taking public transit. 29 CFR § 785.40 “Regular working hours” are applied to weekends too.

West Michigan Chapter Overnight Travel: Sleeping time and time off of work not counted as “hours worked” unless doing work. Work While Traveling: Work that is “required to be performed while traveling must, of course be counted as hours worked.” 29 CFR § 785.41 Meals 20 minutes or longer while traveling can be deducted.

West Michigan Chapter Travel Time Scenario 1: Sam has a company truck. He drives from his home 70 miles away each day to the company office, where he picks up employees Mike and Sally. They then all drive to a work site 60 miles away, leaving at 7 am. At the end of the day, they drive back to the employer’s office for an end-of-day meeting. They then all drive home (Sam takes his company truck assigned to him).

West Michigan Chapter Travel Time Scenario 2: Super Builders Inc. works in the West Michigan market. They have a new job opportunity in Detroit. Employees are told to drive their own cars to Detroit for a 3-week assignment (M-F, employees returning home on weekends). They will be given a stipend of $50 per day for food. Hotel will be covered by the employer. Sam will drive Mike and Sally in the company truck. Jimmy needs to return home each night for personal reasons. He will be driving back and forth from the job site each day to his home in Newaygo, MI.

West Michigan Chapter Travel Time Scenario 3: Mike is assigned to a job site in Ionia. He stops to pick up Sally, who is parked at a Park-N-Ride. On the way, his supervisor calls him and asks him to stop at a supply store, where he and Sally shop for 15 minutes before continuing their commute.

West Michigan Chapter Travel Time Scenario 4: Mike returns home from the job site in Ionia. He lives in Muskegon. At 7 pm, his supervisor calls him and informs him there is a leak at the Ionia job site and he needs to get there right away. Mike leaves at 7:15 pm and returns home at 11:00 pm.

West Michigan Chapter Mileage Not required by law (not in Michigan) Employee’s true costs cannot drop below minimum wage Not part of wages or “regular rate” for overtime calculations so long as amount not over true cost. Can be a rate set by employer or follow IRS rate (53.5 cents). If higher than IRS, then it is income. Policy: Have in writing and require a log.

(Flat rate given each day of travel) West Michigan Chapter “Per Diem” or Stipend (Flat rate given each day of travel) Is it for meals/costs? Or a flat rate each day regardless of costs? Or tied to hours worked? If tied to hours worked, it’s part of “regular rate” If in lieu of covering “travel time,” it must be enough to cover the true “hours worked.” If “per diem” is unreasonably large, it could be increase “regular rate” for overtime calculation purposes. If “per diem” not linked to true costs, it is likely part of “regular rate” for pay period.

Why it matters: West Michigan Chapter $$$$ Damages for Unpaid Hour & OT Liquidated (double) damages Attorney fees 2-3 year look-back Overtime – hidden liability if not counting all “hours worked”

Elizabeth M. Welch elizabeth@welch-law.com 616.454.7618 West Michigan Chapter Elizabeth M. Welch elizabeth@welch-law.com 616.454.7618