In Washington You Have to Pay for All Travel Time of Unexempt Employee on a Business Trip

Posted Thursday, December 2, 2021 by Kim Sandher

If you’re a business owner sending any non-exempt employees out-of-town for business, you should become familiar with the recent changes to Washington law. As recently as October, the Washington Court of Appeals ruled that an employee’s out-of-town travel time taken on behalf of their employer, which includes to and from the airport, in the airport, and in the air, is compensable. This is a far broader interpretation than applied under the federal Fair Labor Standards Act.

In Port of Tacoma v. Joel Sacks, Department of Labor & Industry, the Department investigated wage claims filed by four Port of Tacoma employees who had been sent to China to learn more about the marine cranes purchased by the Port. In accordance with an agreement the Port reached with the employees’ union, the Port made all the arrangements for the trips, including air travel, and paid a maximum of eight hours per day for the travel. As a result, the employees were not paid for all their time spent travelling. In their wage claims, the employees sought payment for all time spent traveling for the Port: including travel to and from the airport, all time spent at the airport, and all time spent in flight.

The Court of Appeals concluded that out-of-town travel is “hours worked” because the employees were “on duty” while traveling for the Port and not on their “daily commute” to work. The time they spent traveling was:

• Part of an assigned task;
• Done at the Port’s direction; and
• Time the employees would have otherwise spent on non-work activities.

The Court found federal law, most state laws, and the Department’s policy all distinguish between unpaid time spent on the “daily commute” to work, which allows workers to tend to personal activities, and out-of-town travel where employees are at the control of the employer. It also granted deference to the Department’s policy, which has long treated travel time as compensable “hours worked” because the policy applied to the employees and was not contrary to legislative intent.

Washington employers should revisit their travel-time policies and practices to ensure hourly employees are paid for all out-of-town travel time—even time they are not engaged in work for the company. This includes time traveling to and from the airport, to and from the employee’s hotel, time at the airport, and time flying. Employers should update their policies to ensure compliance with the new laws.

When arranging for out-of-town travel for hourly employees, employers should pay attention to the amount of time such travel will entail and consider flights with shorter layovers, hotels closer to the airport, and other considerations like sending an exempt employee. The ruling also makes clear that employers should pay close attention to Department guidance and interpretation.

Finally, employers should consult with counsel if they have any questions or concerns regarding employee travel compensation. Please do not hesitate to reach out to us. Kim can be reached at ksandher@pivotallawgroup.com or 206-805-1490.