I just returned from three-and-a-half difficult days of work in Las Vegas. And by “work” I mean serious time spent “networking” alongside the Hard Rock pool, as well as attending “business development meetings” with assorted restaurateurs1 and casino owners. Fortunately, after all this work, there was a little time left over to engage in a few of the assorted diversions Sin City has to offer.2
During my temporally short, yet longevity reducing jaunt3 I had the pleasure of meeting quite a few folks who were in Vegas on more legitimate business purposes than I—conventions, sales meetings and so forth. Which, of course, immediately got me thinking about the employment law implications that necessarily must follow from an ill-fated decision to send employees to Vegas4—or anywhere out of town for that matter.
Wage and hour obligations
The easiest issue to handle is how to compensate employees who are required to travel out of town for business. The rule is simple: non-exempt employees (including those you mistakenly treat as exempt employees) must be paid for all time traveling, as well as all time spent “at work.” The “working” part means attendance at conferences, meetings, required dinners and such. The “travel” part means from the time they leave their home or work location until the time they arrive at their hotel room (assuming they go directly there). Depending on the destination, as well as whether the employee has already worked during the day, the travel readily can result in daily overtime obligations, and the “work” (especially if on the weekends) can result in weekly overtime obligations.
One way to mitigate against the increased costs of travel in this circumstance is to have a written agreement with the employee that provides for a different rate of pay for travel time. This is acceptable if it’s a written agreement that specifies the two rates (travel versus work) and indicates how overtime will be calculated (for example, it’s based on the rate of the work/travel being done in the overtime hours, or a weighted rate).5
Unlawful harassment implications
Another issue that tends to abound with travel is the potential for hanky-panky. (Think “Tailhook.”) While nobody has determined what it is about the hotel lounge or airport bar that evokes such behavior, something about travel appears to make even the most prudish employee less inhibited.6 And while the employees are no longer in their normal office or work place, the fact is the travel destination becomes an extension of their work environment. As such, employers are liable for harassing behavior during such travel just as if the employees were back at the mother ship.7 And while you can draft policies until carpal tunnel sets in, the best protection (aside from travel abstinence) you can get is to wisely choose the employees you’re going to send to travel together.
OSHA and workers’ compensation
The obligation to maintain a safe and healthful work environment similarly extends to the traveling employee, and OSHA’s record keeping obligations apply to injuries that are suffered off-site as long as they’re work-related. There’s a presumption of work-relatedness when the employee is traveling for work. However, that presumption doesn’t apply once the employee has checked into a hotel or motel, thereby establishing a “home away from home.” Once that’s done, if an injury occurs in the hotel room, an evaluation must be done of what activity was occurring at the time of injury.8 Activity doesn’t become work-related again until the employee arrives at the location where work is to be performed (the job site, meeting, convention site and so forth—travel to there from the hotel room is excluded).
Similarly, an injury isn’t work-related for OSHA purposes if it occurs during a personal “detour” from the route of travel or during a personal pursuit. So, if your employees stop off at a bar or to see friends and are injured while doing so, the injury isn’t reportable under OSHA.
Workers’ compensation is a different matter. While the “going and coming” rule excludes compensation for employees commuting to and from work, the rule doesn’t apply to a corporate traveler, who’s covered by workers’ compensation even during purely personal pursuits. Thus, your employee injured in a brothel outside of Las Vegas will be covered by workers’ compensation. (I kid you not—the seminal case in California involving this rule dealt with a banker who died in a hotel room with a prostitute.9) Or, for a more mundane example, the employee who trips and falls in the hotel bar after a convention meeting will be covered by workers’ compensation.
So, while travel for meetings, conventions and the like can be fun, motivating, morale boosting and popular, it will undoubtedly have some legal consequences for you. By keeping them in mind before employees embark on their odyssey, you can help ensure whatever happens out of town doesn’t come back to bite you.
1 Maybe not the restaurateurs directly, but definitely their waitstaff.
2 None of which will be discussed here. My mother supposedly reads this column, for Pete’s sake.
3 Life insurance applications really should start asking how often one travels to Vegas. I breathed in more second-hand smoke in three days than I did in the last five years in nearly smoke-free California. I came back sounding like Marge Simpson.
4 Which amazes me. Employers will spend time and money worrying about whether to serve booze at a Christmas party, yet they send a group of employees to Vegas for meetings.
5 And don’t forget, an employer must reimburse for all “necessary” expenses incurred in “direct consequence” of duties.
6 Maybe it’s the compressed air and altitude experienced on the airplane.
7 And for some reason, some venues chosen for “business development” during travel tend to be less politically correct than the traditional dinner. In such a case, when women feel excluded or offended, harassment and discrimination suits arise.
8 I’d love to see what scenarios are running through your mind right now.
9 And you wondered where all that bank bailout money goes.
