The most frequent questions to the “Ask the Lawyer” column concern compensatory time and travel while on temporary duty (TDY). Given the interest and confusion, a brief review of the rules seems in order.
The entitlement to compensatory time while on official travel was one of the major new entitlements of the 2004 Federal Workforce Flexibility Act. The entitlement applies to virtually all federal employees, except senior executives. It addresses the problem that since many federal employees are exempt from the Fair Labor Standards Act, they were often not compensated for time spent traveling outside their normal work hours. There are some rules and limitations. References are provided so that you can research your particular situation.
When traveling on official business beyond their official duty station, employees are entitled to compensatory time off for travel occurring outside their normal duty hours, including travel to and from the airport, train station, hotel, etc. See 5 U.S.C. § 5550b and 5 C.F.R. § 550.1404(c).
“Official duty station” is defined as a reasonable geographic area surrounding the work site, as designated by the agency. See 5 C.F.R. § 550.1403. The agency “may prescribe a mileage radius of not greater than 50 miles to determine whether an employee’s travel is within or outside the limits of the employee’s official duty station for determining entitlement to overtime pay for travel.” See 5 C.F.R. § 550.112(j). This seems to generate the most questions, because many employees are required to travel within the 50-mile radius of the official duty station. TDY is applicable only beyond the 50-mile radius.
An employee on TDY is entitled to compensatory time only “for time in a travel status away from the employee’s official duty station when the travel time is not otherwise compensable.” See 5 C.F.R. § 55.1401. According to 5 C.F.R. § 550.1403, “Compensable refers to periods of time that are creditable as hours of work for the purpose of determining a specific pay entitlement, even when that work time may not actually generate additional compensation because of applicable pay limitations.” In other words, if the travel occurs during your normal work day, you are entitled to your salary, not compensatory time.
“Hours of work” is defined in 5 U.S.C. § 5542(b)(2) and 5 C.F.R. § 550.112(g). If these hours exceed the normal work day, the employee is entitled to be paid overtime and is not entitled to compensatory time. Official travel away from one’s duty station is considered hours of work when the travel occurs within regularly scheduled work times; when work is done while traveling, when the time spent is a necessary part of the travel time that involves work (e.g. time spent getting to the mode of transportation, driving to the airport, waiting at a bus station, etc.), when the work is carried out under arduous or dangerous conditions, or when the work results from an event that could not be scheduled or controlled administratively by an individual or agency. In other words, if you work while you travel, you get paid. If you use your travel time just to travel, you get compensatory time. If you are traveling to a disaster, for example, rather than a conference, you get overtime regardless of whether you use travel time for work or just to travel.
Federal employees are eligible for payment of travel expenses, such as airfare, when performing official travel. See 41 C.F.R. § 301-10.1-10.2. Generally, travel expenses should be paid with an employee’s government-issued travel card, unless the employee has an exemption. See 41 C.F.R. § 301-51.1. If the employee receives an exemption, he or she may pay for transportation expenses with cash, personal credit cards, personal check or travelers check. See 41 C.F.R. § 301-51-101. Be careful about this one. Federal employees have been disciplined for not using their travel card when they are supposed to, or using the travel card for nontravel expenses.
These are the highlights. The rules are technical and each individual situation must be considered. Employees who travel have a statutory benefit that should be administered fairly and consistently.
If an FLSA exempt employee is at meeting or work site within 50 miles of the official duty station but the drive from or to the office requires 30 minutes or more of driving over the normal 8 hour period of work, should the extra time be billed as comp earned or travel comp earned?
Does the entitlement to compensatory time while on official travel apply to contract employees?