I always tell clients they must comply with both federal and state law, whatever State they are situate in, that complying with one is not a defense to not complying with the other, tougher, law. A sterling example of this concept has just arisen in a travel time case. Travel time issues are often murky, anyway, and the vagaries of a particular State may prove difficult to be aware of, before “something” happens. A recent Washington State case highlights this point. The case is entitled Port of Tacoma v. Sacks, and issued from the Washington Court of Appeals,

As a rule, under the FLSA employers do not have to compensate employees for time travelling outside of their normal workday. If an employee’s workday is 9AM-5PM, and that employee catches a plane at 9PM, then that travel time (and the time going to the airport) is not compensable. If the plane leaves at 3PM, then the travel is compensable, including the commute to the airport. An important note—these principles apply only to non-exempt workers, as exempt workers do not receive overtime (or compensation beyond their salary) regardless of whether the travel would be compensable.

The Washington decision expands the protection of the wage hour laws to that travel time beyond the end of the shift. The Court ruled that four non-exempt workers employees who traveled to China to monitor the erecting of four cranes were due compensation for all their travel time to and back from China. The Court held this, notwithstanding that the employer and the Union representing the workers negotiated an eight hour per day compensation arrangement.

By doing so, the Court held true to the State Department of Labor & Industry position that went beyond federal law and held that all travel time which was related to the job was compensable. The State DOL position is that the timing of the travel is irrelevant, i.e. whether it happens during the normal shift or after and it also include the travel time to the airport.

The Takeaway

This case shows that employers must be cognizant of the wage hour laws, not just cases, but the positions and perspective of the particular Department of Labor, in every jurisdiction they do business in. This Washington case is a bit of an anomaly as it significantly expands the compensability of travel time and may also apply to other preliminary and postliminary activities. It is not enough to defend by showing compliance with the FLSA.

Don’t be unpleasantly surprised…