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We need to send two (2) hourly/non-exempt employees to Thailand

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We need to send two (2) hourly/non-exempt employees to Thailand for a week's training. What are we required to do regarding "pay" and "travel time?"

Hello and thank you for entrusting me to answer your question.

Labor Code section 2802 requires employers to indemnify employees for "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties."

In regard to an employer's obligation to reimburse travel related expenses, the following Wage Orders address that issue:

13703. Payment of Per Diem Expenses.

(a) Meals. Every employer shall reimburse each employee for the purchase of meals when the employer requires the employee to travel away from home on business. The employee shall be reimbursed for the necessarily incurred costs of regular meals, breakfast, lunch and dinner, either by the actual cost method or by the standard meal and incidental expense allowance method at the rate approved by the Internal Revenue Service as published annually in Internal Revenue Service Publication 1542.

(b) Incidental Expenses. Every employer shall reimburse each employee for incidental expenses necessarily incurred when traveling away from home on business. These expenses include fees and tips given to porters, baggage carriers, bellhops, hotel maids, stewards or stewardesses and others on ships, and hotel servants in foreign countries. They also include transportation between places where meals are taken and mailing costs associated with filing travel vouches and payment of employer-sponsored charge card billings. Incidental expenses do not include expenses for laundry, cleaning and pressing of clothing, lodging taxes, or the costs of telegrams or telephone calls. Such excluded costs may qualify as covered reimbursable costs if expended in connection with travel as “Other Travel Costs” under section 13704 below.

(c) Lodging. Every employer shall reimburse each employee for the cost of a hotel room for each night that an employer requires an employee to travel away from home, The employee shall be reimbursed for the necessarily incurred costs of lodging either by the actual cost of the hotel room, or by using the lodging allowance rate approved by the Internal Revenue Service for the location of the employee’s lodging as published annually in Internal Revenue Service Publication 1542.

An employer must typically pay an employee for travel time because this is time that an employee is "under the control" of the employer, and thus is "working." The following opinion letter from the DLSE thoroughly addresses the question of the extent to which travel time must be paid for: I would highly recommend reviewing it.

Of particular note, the DLSE states as follows:

"Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in travling to and from this out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is under such cirumstnaces, time spent carrying out the employer's directives, and thus, can only be characterized as time in which the employee is subject to the employer's control. Such compelled travel time therefore constitutes compensable "hours worked." On the other hand, time spent taking a break from travel in order to eat a meal, sleep, or engage in purely personal pursuits not connected with traveling or making necessary travel connections (such as, for example, spending an extra day in a city before the start or following the conclusion of a conference in order to sightsee), is not compensable."

Put simply, the inquiry with regard to compensable time is focused on whether the employee is carrying out the employer's directives. Such time spent carrying out the employer's directives is compensable, and all other time is not.

The travel time should be paid at the employee's regular rate of pay. However, it is generally permissible to have a wage agreement whereby employees are paid at a lower rate not to fall below minimum wage for compensable travel time and other types of non-productive work time, as noted in 29 C.F.R. 778.318(b) and a DOL administrative opinion letter dated January 22, 1999 (BNA, WHM 99:8211).

Note well, however, that any such agreement should be clearly expressed in a written wage agreement signed by the employee, and the time distinguished as travel time must be carefully and precisely recorded. Further, if such travel time results in overtime hours, the overtime pay must be calculated according to the weighted average method of computing overtime pay, as provided in 29 C.F.R. 778.115.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes and happy holidays to you.

Patrick, Esq. and other California Employment Law Specialists are ready to help you