Help Wanted: On the road, on the clock
Carrie Mason-DraffenCarrie Mason-Draffen
Mason-Draffen, a business reporter, writes a column about workplace issues.
DEAR CARRIE: I have a small business that dispatches employees to job sites for installations and repairs. We generally pay our service employees from 9 a.m., when they get to the shop, until 5 p.m., when our workday ends. We don't pay for the travel time it takes for them to come back to the shop to drop off the company truck before they head home. But an employee contends that New York State labor law requires us to pay for travel time back to the office from the last job site. In the last snowstorm it took him four hours to make it back. And he says we owe him for all that time. Is he right?
-- Whose Dime?
DEAR WHOSE DIME: He is right. It doesn't seem fair that you have to pay for drive-time hours considerably lengthened by Mother Nature's fury, but the law says you have to pay for the hours spent commuting between job sites and between job sites and the main office.
But when an employee leaves a job site to go home, that is considered just regular commuting, not hours worked.
Here is what section 785.38 of the voluminous Book 29 of the Code of Federal Regulations says about travel time that has to be paid:
"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 workplace is part of the day's work and must be counted as hours worked."
And the following excerpt, from the same section, provides a more detailed example of how the regulation applies.
"If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job that 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 returning to his employer's premises, the travel after 8 p.m. is home-to-work travel and is not hours worked."
Now, if your employee pulled off the road to wait out the snowstorm or holed up in a diner, then legally he couldn't charge you for that time.
"We would look at all the circumstances," said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department in Westbury. "If the employee was engaged in activity that was outside the realm of travel between job sites, we would discount that time."
The difficulty, of course, is proving that.
This discussion involves nonexempt employees, who are generally hourly, and have to be paid for all the hours they work. Companies do not have to pay exempt employees for extra hours spent traveling to and from work sites. Those workers include managers as well as professionals whose jobs require four-year college degrees.
DEAR CARRIE: I have a general question regarding paid holidays. I thought that New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day were federal holidays and therefore all employers, both public and private, must pay all hourly and salaried employees for these holidays.
-- Where's the PTO?
DEAR WHERE'S THE PTO: You have described heaven on Earth for private-sector employees. And like that concept, such a regulation doesn't exist. Sure, those are federal holidays, and most federal employees get those days off with pay. But the private sector isn't required to follow suit, and many companies don't. And that is legal. Companies can decide whether to offer employees paid holidays. No labor law requires them to do so.
For more on when travel time is counted as hours worked go to http://1.usa.gov/M6EBiy. For more on state labor law and paid-time off go to: http://bit.ly/OhVNDt.