We have some non-exempt employees traveling to Poland. How do we calculate international travel in line with FLSA rules?
Travel time: Travel that keeps an employee away from home overnight is designated as “travel away from home” by the Wage and Hour Division regulations (29 CFR 785.39).
Travel away from home is paid work time when it “cuts across the employee’s workday.” This is because the employee is deemed to be simply substituting travel for other duties. The time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on nonwork days.
The Wage and Hour Division, however, does not consider time spent traveling away from home outside of regular working hours as a passenger on a plane, train, boat, or bus as paid work time.
If an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is work time on Saturday and Sunday as well as on the other days. Regular meal period time is not counted as work time.
For example, if an employee who normally works 9 a.m. to 5 p.m. from Monday through Friday is a passenger on a plane departing for San Francisco at 9 a.m. on a Saturday, his time spent traveling is work time because it cuts across his normal working hours. It does not matter that Saturday is not a normal workday. However, if the plane departed at 6 p.m. instead, his travel time would not be counted as paid work time because he would be traveling outside of normal working hours.
Work outside the U.S.: According to the DOL’s Field Operations Handbook, FLSA Section 13(f) states that the minimum wage, overtime, record-keeping and child-labor provisions do not apply to any employee whose services are performed in a work place within a foreign country or within a territory under the jurisdiction of the U.S. other than the following:
• A State of the United States
• The District of Columbia
• Puerto Rico
• The Virgin Islands
• Outer Continental Shelf Lands
• American Samoa
• Wake Island
• Eniwetok Atoll
• Kwajalein Atoll
• Johnston Island
The FLSA does not apply to employees exclusively employed in foreign countries even though they may be American citizens and employees of an American employer.
You can find additional information on this topic in the DOL’s Field Operations Handbook at: http://www.dol.gov/whd/FOH/FOH_ch10.pdf under Geographical Limits.
Also, according to a DOL Opinion Letter (Wage & Hour Opinion Letter #1563 WH-510 dated June 29, 1981), if an employee works any part of a week in the U.S. and is covered by the FLSA, then he or she is also covered by the FLSA for the time spent working overseas during that week.
There is no specific reference to international travel time under the FLSA.