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Traveling Overseas for Work – Paid or Unpaid?

I recently traveled to Norway for business. On my long flight home, I began considering to what extent my travel time would be compensable time under the Fair Labor Standards Act (“FLSA”) (assuming I were a non-exempt employee, of course). This thought was not totally out of left field, as the Norwegian Supreme Court recently ruled that travel time for a police officer is working time for the purposes of Norwegian pay and overtime laws. This Norwegian decision prompted me to think about what the FLSA — which was enacted when international air travel was rare — says on the topic of international travel time? Like many legal issues, the answer depends on the particular facts. So let’s break down my travel. First, I took a taxi to the airport. Travel to the airport is compensable if it occurs during normal working hours. So, if my normal working hours are 8:00 a.m. to 5:00 p.m. and I left the house for the 30-minute trip to the airport at noon, that time would be compensable. Note however that if I drove myself to the airport, that time would be compensable regardless of when it occurred.

The same rule applies to time spent at the airport before my flight leaves — waiting in lines during my normal working hours is compensable. But if my flight got delayed until 7:00 p.m., those last two hours of waiting would not be compensable. Notably this rule applies regardless of the day of the week, meaning that my travel time on Saturdays and Sundays are compensable as long as it is occurs between 8:00 a.m. and 5:00 p.m.

Things get a little more complicated once I am up in the air. Travel, including flight time, remains compensable if it occurs during my normal working hours, with normal working hours based on the time zone from which I depart. This means that if I left Houston at 3:00 p.m., heading east, the next two hours are compensated even though the last hour may be in the Eastern time zone, where it is already after 5:00 p.m. Workdays do not shorten or lengthen depending on changes in time zone. But if I am required to work on the flight, that time is compensable regardless of whether it occurs outside my normal working hours.

When I land in Norway, does the FLSA still apply to me? Yes, if I worked part of my employer’s designated work week in the U.S. So, if I work overtime during the work week that started in the U.S. but ends in Norway, I am entitled to overtime pay. But if I spent an entire work week in Norway, I would not be entitled to overtime pay under the FLSA even if I worked more than 40 hours that week. A question then arises as to whether local Norwegian law may apply to my pay, which is a subject for a future post.

As you can see, this gets complicated. If you plan to send non-exempt employees overseas, it is important to know the FLSA’s rules on travel time. You should also be clear with employees regarding what time will be compensated so they know what to expect. You may also need to check the local laws in the country where the employee is assigned. Of course, the drive I took in the mountains near Solvorn, Norway and the stop to take the attached photograph would not be compensable time for me. But that’s okay, it was worth it.

 

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.