Everyone I know seems to be affected by the current Government shut-down in at least one way, waiting at the airport or waiting for someone or something traveling through an airport. It’s a hassle for sure, but airport delays can be more than just an inconvenience. Airport delays can also pose significant wage-risk challenges for employers, especially when dealing with non-exempt employees. Under the Fair Labor Standards Act (FLSA), time spent waiting or traveling can qualify as “hours worked” if the employee’s activities are controlled by the employer. Here’s how proactive travel policies can help mitigate these risks.
Understanding When Delays Are Compensable
The key to determining whether delays should be compensated lies in examining specific scenarios:
- Employer-Directed Itineraries: If the employer mandates a specific flight or schedule leading to delays, this time might be compensable.
- On-Site Presence Requirements: Employees required to stay at the gate or terminal, check-in, or be available for tasks may need to be compensated.
- Custody of Equipment: If an employee must oversee employer equipment during delays, this period can be considered work time.
- Performing Work During Waits: Any work done during delays, such as completing paperwork or making calls, is compensable.
- Delays During Normal Working Hours: If a delay happens during an employee’s regular working hours, even on overnight trips, it might be compensable.
When Delays Are Typically Non-Compensable
Delays generally are not compensable under these conditions:
- Employees Relieved of Duty: If employees can use their time freely, such as leaving the airport for leisure, it’s not compensable.
- Voluntary Scheduling Choices: Delays resulting from personal choices in scheduling do not require compensation.
- Travel Beyond Normal Hours: Travel outside normal working hours without duty obligations generally isn’t compensable.
- Minimal Delays: Short, infrequent delays often fall under de minimis and are not compensable.
Mitigation Strategies for Employers
Employers can face several operational exposures that may transform personal time into compensable work time. Here are strategies to minimize these risks:
- Flexible Booking: Allow employees to choose reasonable flights rather than enforcing rigid schedules.
- Clear Travel Orders: Document travel approvals, including authorizations and required itineraries.
- Define Working Hours: Establish and communicate company standards for normal working hours related to travel.
- Duty Status Policy: Clarify circumstances when employees are relieved from duty or must stay available.
- Accurate Timekeeping: Have employees record waiting times and document any work performed during delays.
- Educate Schedulers: Ensure those arranging travel understand the wage implications.
- Monitor Risks: Regularly audit travel routes and delay causes to adjust policies as needed.
- Include in Overtime Calculations: Ensure all compensable time is included in payroll and overtime.
- State Law Compliance: Verify adherence to state laws that may be more protective than federal rules.
- Document Decision-Making: Maintain records explaining decisions for required itineraries or on-site obligations.
Call to Action
Stay ahead of potential risks by adopting robust travel policies and clear communication. Ensure your HR team is prepared to handle the complexities surrounding travel-related compensation and compliance.
