How should we pay for overnight travel?

Q. I know that the laws on overnight travel time are more restrictive in California than under federal law. Does the overnight travel rule under federal law apply in California or does an employer have to pay all travel time even if overnight travel is involved?

A. This is one area where there are several material differences between federal and state laws. The Wage and Hour Division (WHD) of the U.S. Department of Labor distinguishes between hours worked during normal working hours. Under federal law, an employee’s travel time is compensation if it occurs during his or her normal working hours (regardless of whether they occur on the employee’s normal working days). However, hours outside of normal working hours spent as a passenger are not compensable unless the employee spends that time working.

The salient distinction under California law, on the other hand, is not whether the travel time occurs during normal working hours, but whether the employee is subject to the control of the employer.

Any travel time that is compulsory is considered time during which the employee is subject to the control of the employer. Thus, all travel time is considered hours worked, regardless of whether the employee is a passenger or is free to engage in personal pursuits.

This means that in California, employers are required to compensate employees for all the time they spend traveling to and from an out-of-town compulsory business event.

However, time spent taking a break from travel, including time spent eating, sleeping, or engaging in purely personal pursuits not connected with the travel is not compensable.

While state law prohibits employers from overriding these requirements by instituting a contrary policy, employers may establish a different rate of pay for travel time.