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SECTION 9. TRAVEL TIME AS HOURS OF WORK

Applicability

This Section applies to GS, FP, and FWS EXEMPT and NONEXEMPT employees.

When is travel compensable

Time in a travel status away from the official duty station is compensable for EXEMPT and NONEXEMPT employees when the travel is performed within the regularly scheduled administrative workweek, including regularly scheduled overtime. In addition, travel is compensable for both categories of employees for purposes of meeting the daily and weekly overtime standards when it:

involves the performance of work while traveling, (e.g., as a chauffeur or courier);
is incident to work performed while traveling (e.g., a courier's travel relative to the spot where further travel to deliver a diplomatic pouch would begin);
is carried out under such arduous and unusual conditions that the travel is inseparable from work; or
results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the employee's return from such an event to his or her official duty station.
For a NONEXEMPT employee, travel meeting the weekly overtime standard (but not the daily overtime standard) also includes:
travel as a passenger on an overnight assignment during hours on nonworkdays which correspond to regular working hours; and
one-day travel as a passenger to and from a temporary duty station (not including travel between home and the employee's normal duty station).

Who makes the determination

Officials to whom authority has been delegated to authorize or approve travel on official business are responsible for determining whether travel outside the regularly scheduled workweek meets any of the conditions for hours of work.

How much travel time is creditable for pay

When travel outside the normal workweek constitutes hours of work, the following rules will apply in determining the amount of time in a travel status that is deemed hours of work for premium pay:

When is an employee in travel status. An employee is in a travel status only for those hours actually traveling between the official duty station and the point of destination, or between two temporary duty points, and the usual waiting time which interrupts travel.

When traveling by common carrier.Time in a travel status begins with the scheduled time of departure from the common carrier terminal, and ends upon arrival at the common carrier terminal located at the destination. However, when the employee spends 1 hour or more in travel between the common carrier terminal and place of business or residence, then the entire time traveling between the carrier terminal and place of business or residence (that is actual time traveling, exclusive of waiting time at the terminal prior to the scheduled departure time) counts as hours of work.

Waiting time. Usual waiting time between segments of a trip or at common carrier terminals counts as worktime for premium pay (up to 3 hours in unusually adverse circumstances, e.g., holiday air traffic, severe weather) provided travel away from the duty station is compensable because it meets any of the conditions of this Section.

Authority to order noncompensable travel

Congress has not provided a remedy whereby an EXEMPT employee who performs official but noncompensable hours of travel may be compensated (57 Comp. Gen. 43, 50, 1977). A manager does, however, have the authority to schedule official travel that is noncompensable. As a requirement of 5 CFR 610.123, the manager must record the reasons for ordering such travel in a memo to be filed with the employee's Time and Attendance Report (T&A). A copy of the memo must be given the employee if the employee requests it.

Case law

Work performed while traveling. In order to meet the intent of the law as defined in the majority of Comptroller General decisions, work performed while traveling must be work which is inherent in the employee's job and which can only be performed while traveling, e.g., chauffeuring, hurricane reconnaissance performed aboard a plane flying into the eye of the hurricane, etc. Discretionary work such as review of a scientific presentation by a scientist or treaty papers by a foreign service officer enroute to a meeting is work which could be performed in an office independently of travel and does not satisfy the definition of work while traveling and is, therefore, not compensable for purposes of overtime.

(B-146288, January 3, 1975)

Work incident to work performed while traveling. Travel which is incident to work performed while traveling must also meet the definition of "work performed while traveling" above. Travel which is necessary to meet another mode of travel is compensable for overtime purposes if the traveler performs work while traveling which is an inherent part of the job and which could only be performed while traveling, for example, a motor vehicle operator who is ordered to travel by plane in order to take responsibility for a truck which he or she is then to deliver to its permanent location (57 Comp. Gen. 43 (1977), or a courier who travels to pick up and deliver a pouch (B-178458, dated June 22, 1973). Travel and incidental transport of files is not within the definition since the transportation of files is work not inherent in the job (B-181632, dated April 1, 1975).

Travel under arduous conditions. Arduous means more than the inconvenience associated with long travel delays, unbroken travel, unpleasant weather, or bad roads. Prolonged travel in heavy blowing snow which makes driving difficult but stops short of endangering the employee might be considered arduous. A distinction must be made between travel which is arduous and travel which is hazardous duty. Each case must be judged on its own merits (B-193623,

July 23, 1979).

Travel resulting from an event which could not be administratively scheduled or controlled. An event that cannot be administratively scheduled or controlled implies immediate official necessity for travel. If it is discre-tionary when the employee begins travel, not including the minimum necessary time to make travel arrangements, the notion of immediate necessity which is implied by an event that could not be scheduled or controlled is lacking and the intent of the law as defined by the General Accounting Office is not satisfied. Therefore, time spent in such travel would not be compensable for overtime purposes

(B-186005, August 31, 1976).

Within the agency's administrative control. Whether the scheduling or timing of the event that precipitates an employee's travel was within the administrative control of the agency is strictly interpreted in decisions of the Comptroller General (CG). Travel on overtime to and from a meeting arranged at the discretion of two Federal agencies is not compensable since agencies have it within their power to ensure that the employee travels during work time

(B-146288, January 3, 1975 et alia).

For the same reason, travel to and from training which is conducted by the government, under government contract or by a private institution solely for the benefit* of the government is not compensable since the government has it within its power to ensure that the start and end times of such training allow the employee to travel on work time

(B-190494, May 8, 1978; also, 66 CG 620, 1987).

*In William A. Lewis et al, 69 CG 545 (1990). The CG ruled travel on overtime to and from training that is given by a private institution is compensable because government cannot control the private institution or its scheduling of the course. The Lewis opinion further held that the notion of "immediate official necessity for travel" which prior CG decisions have held must be present in travel which responds to an event that is not scheduable or controllable was established by the start time of the class. To be present when the class began, the employees had to travel on Sunday.

NOTE: The regulations which govern training time which is compensable as overtime and travel to and from training are separate and distinct. The circumstances under which premium pay may be paid while an individual is in training are covered in Section 11.

Meeting abroad - a matter of accommodation. An employee's claim for overtime compensation for travel overseas to be present at the opening of a conference with representatives of a foreign government was disallowed. Although the employee's agency indirectly scheduled the meeting through the USAID Mission, the Comptroller General ruled the lack of governmental control envisioned by law and regulation for travel on overtime to be deemed compensable was not present. (Gerald C. Holst, B-202694, January 4, 1982; and B-222700, dated October 17, 1986).

NOTE: The Lewis decision (see discussion above) precipitated a review of CG decisions with the result that government control of events was sufficient to validate all previous decisions except one: Gerald C. Holst, was overruled. In overruling the 1986 decision, the Comptroller General found the agency to lack control of the scheduling of the meeting to an appreciable degree. Further, the start time of the opening conference established the immediate official necessity for travel. Travel, was, therefore, compensable.

Failure to plan. An employee who travels outside his or her normal tour of duty to perform maintenance on equipment so that the equipment can perform necessary functions in accordance with operational deadlines is not performing compensable travel if the maintenance responds to gradual deterioration which could have been prevented if maintenance was scheduled on a timely basis (49 Comp. Gen. 209, 1969).

Two-day per diem rule. An employee may be required to travel on his or her own time if in order to allow the employee to travel during working hours, the agency would be required to pay two days or more per diem. However, the two-day per diem rule does not of itself support an entitlement to overtime compensation for the employee. To be compensable at the overtime rate, travel must respond to an event that could not be scheduled or controlled administratively and there must be an immediate official necessity for the travel to be performed outside the employee's regular duty hours (60 Comp. Gen. 681, 1981).

Return travel. When an employee performs compensable overtime by traveling to an event which could not be controlled or scheduled, he or she is automatically eligible for compensation for return travel to his or her duty station.

Disparity in hours of work means disparate overtime entitlement. Because FLSA provides two situations in which a NONEXEMPT employee, but not an EXEMPT employee, can be paid for travel on overtime hours, (specifically, during hours on nonworkdays which correspond to regular working hours and for one-day travel as a passenger to and from a temporary duty station), it is possible for a NONEXEMPT employee to be paid for travel when an EXEMPT employee in the same situation is ineligible for overtime pay.