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Travel Time Pay Rules in California (2024): The Ultimate Guide

Posted January 31, 2020 by lewislaw & filed under Employment Law Articles .

Last Updated:

• January 18, 2024

A comprehensive guide to travel time pay rules in California —when employees are entitled to be paid for travel time and how to recover those lost wages.

Unpaid travel time can exceed over $100,000 in lost wages, interest and penalties.

Find out how much of your travel time should be paid and how you can recover it.

Article Contents:

Section #1: types of travel time that should be paid, types of travel time that should be paid.

• Time when you actually perform work (i.e. sending email, making phone calls, etc.); OR
• Time when you do not actually perform work (and might even be doing personal things like checking the internet, texting and making personal calls), but when your employer exercises enough control over you that the law considers it working time.

When is an employee considered to be "Performing Work"?

Unlike John, however, Mary is required, on her way to work, to drive to a secure storage facility to pick up the tools she will use for that day. On the way home from work, she is required to return to the storage facility to unload the tools, clean them, and make sure they are locked up for the night. 

Mary is entitled to be compensated for the time spent loading, unloading, and cleaning the tools, as well as for the time she spends traveling between the storage facility and company headquarters. This is because these activities add time and exertion beyond what her normal commute would require. In other words, she is performing actual work for her employer during that time.

When is an employee “subject to control” of the employer?

Many legal cases considering whether an employee should be paid for travel time focus on the issue of whether the employee was “subject to the control” of the employer during the travel time. The key question is what does your employer require you to do?

• Does your employer require you to travel to work in a company vehicle?
• Does your employer require to follow certain when traveling to or returning from work each day?

Examples where the employee should be paid for travel time

• When the employer provides transportation to a jobsite (example: a bus) and requires that employees only use that form of transportation to get to work.
• When the employee has already reported to the worksite at the beginning of a shift and then the employer instructs the employee to travel to other locations.
• When the employee is required to engage in overnight travel (for example, if the employee is required to take an airplane to attend a conference in another state, the employee must be compensated for time traveling, as well as time spent checking bags, going through security screening, etc.).

Examples where the employee is not entitled to be paid for travel time

• When the employee is making the normal commute between home and work.
• When the employer provides transportation to a jobsite (example: a bus or company van) but does not require that employees use of that mode of transportation to arrive at the job.
• When, during required overnight travel, the employee takes time to do personal things like go out to dinner, go sight-seeing, or sleep.

[ return to top ] 

Section #2: When Should You Be Paid For Travel Time?

When should you be paid for travel time.

Travel when overnight stay is required

• Conferences
• Sales meetings
• Continuing education requirements

From the Law:

Travel from one workplace to another in the same day, travel from home to work when there is no fixed workplace, if you are required to report to a work location that is farther away than your normal work location., if you have no fixed job site and are required to travel an unreasonable distance to get to work., travel from home to work in a work vehicle, travel when you work from home (virtual or remote employees).

More than 8 million people now work exclusively from home. In California nearly 6% of workers work from home , a percentage that almost doubles when you look at some locations in the San Francisco Bay and Los Angeles areas.

Section #3: How Much Should You Be Paid for Travel Time?

How much should you be paid for travel time.

You must be paid at least minimum wage or your regular hourly rate for travel time.

Employers can pay a lower hourly rate for travel time..

• Provide you notice prior to the travel time.
• Separately track your travel time.
• Separately list your travel time, including the total hours traveled and your travel time rate on each pay stub.

Section #4: How to Calculate Your Travel Time Pay

How to calculate your travel time pay.

Calculating your travel time pay

How to calculate overtime (based on travel hours), reimbursement for travel expenses (mileage), section #5: how to recover your travel time pay, how to recover your travel time pay.

There are strict time limits for recovering your unpaid travel time

Recovering travel time pay while you are still working at the company.

• Discrimination
• Retaliation
• Firing/Termination
• Reduction in Pay
• Reassignment of Position
• Other Adverse Employment Actions

Recovering travel time pay if you do not want to file a lawsuit

Section #6: choosing the right attorney, choosing the right attorney.

Questions You Can Use to Interview Attorneys

• Do you practice employment law?
• What is your level of experience dealing with travel time cases?
• Have you had favorable outcomes? (Most attorneys will be able to answer this question. But they might not be able to tell you how much they have won in these types of cases if there is a confidentiality agreement in place. Attorneys are obligated to keep confidential settlements confidential.)
• What do you think is the best strategy for handling my case keeping in mind my goals? (tell the attorney about your goals for resolving the case)
• How long will it take to resolve my case?
• What is your fee structure?
• What does your fee include and exclude?

After speaking with the attorney, consider the following questions:

• Was the attorney responsive?
• Did the attorney answer your questions?
• Did the attorney inspire confidence in you that he or she knew the subject matter?
• Is the attorney someone you feel you can trust?

Section #7: Hire an Experienced Travel Time Pay Attorney

Hire an experienced travel time pay attorney.

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Under the FLSA, when must nonexempt employees be paid for travel time?

The Fair Labor Standards Act (FLSA) regulations require employers to pay for travel time in some circumstances. Generally, time spent traveling is compensable, unless it is normal home-to-work commute time, or when travel requires an overnight stay and the time spent traveling as a passenger falls outside of the employee's normal work hours.

When pay is required, the time spent traveling is considered hours worked and must be included when determining overtime pay obligations. 

Home-to-work travel. Normal commuting time to an employee's regular worksite is not treated as hours worked under the FLSA.

Home to work on a special one-day assignment in another city . When an employee must travel out of town for work but returns home the same day, all the time spent traveling during the day is compensable, regardless of the employee's regular work hours. However, an employer may deduct the time the employee would have spent commuting to his or her regular work location.

Travel that is all in a day's work. Time spent traveling to and from different worksites during the day is work time and must be paid.

Travel away from home. When travel requires an overnight stay, any time traveling as a passenger that falls within the employee's normal work hours is compensable, regardless of what day of the week the travel takes place. Time spent traveling to an airport terminal or train station is considered commute time and is not treated as hours worked, but the time spent waiting at the terminal until arrival at the destination is compensable when it falls during normal work hours.

For example, if Meg normally works Monday through Friday, 8:30 a.m. to 5 p.m., and she is required to travel by plane on a Sunday for business in another state, her travel time on Sunday between 8:30 a.m. and 5 p.m. is compensable.

So, if Meg arrives at the airport on Sunday at 3 p.m. and at her destination at 8 p.m., the employer is required to pay her only from 3 p.m. to 5 p.m., the hours that correspond with her normally scheduled work hours.

Alternatively, if Meg drives herself or others at the direction of the employer rather than traveling as a passenger, all the time spent driving is compensable work time, regardless of Meg's normal work hours.

Driving at the direction of the employer . When employees are required to drive themselves or others, all driving time is compensable. However, when an employee is traveling to an overnight stay and has the option to use public transportation (i.e., airplane, train, bus, etc.) but chooses to drive his or her own vehicle instead, the employer can either choose to pay for all time spent traveling or pay only the travel time that occurs during normal work hours, regardless of what day of the week the employee travels (CFR 785.40). If an employee volunteers to drive others in his or her own vehicle to the overnight stay, an employee's time could be unpaid for those travel hours outside the normal work hours.

Worked performed while traveling. An employee must be paid for any time he or she is performing work. This includes time spent working during travel as a passenger that would otherwise be non-compensable.

For example, Meg normally works Monday through Friday, 8:30 a.m. to 5 p.m. She arrives at the airport on Sunday at 3 p.m. and at her destination at 8 p.m. Generally, the employer is required to pay her only from 3 p.m. to 5 p.m.; however, if Meg works on a presentation during her flight until 6:30 p.m., her employer would need to pay her from 3 p.m. to 6:30 p.m.

Some states have travel-time laws that are more generous than the federal FLSA.  

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DOL Explains When Employees Must Be Paid for Travel Time

Jul 6, 2018

Eighty years ago the Fair Labor Standards Act (FLSA) established federal minimum wage and overtime requirements for hourly employees. The law’s basic tenet seems straightforward: Employers must pay employees for their “work.” Yet for many employers, compliance with the FLSA on issues such as employee travel time continues to be problematic because the FLSA does not really explain when an employee is at “work.”

The FLSA and Portal-to-Portal Act

The Supreme Court initially explained that “work” time means when an employee’s activities are controlled or required primarily for the benefit of the employer. Congress subsequently added some specifics to the Supreme Court’s expansive definition. The Portal-to-Portal Act, an amendment to the FLSA, provides that employee work time does not include:

(1) Travel to and from the actual place of performance of the principal activity the employee is employed to perform; or

(2) Activities that are undertaken before or after the employee’s principal work activity.

Three Scenarios and DOL’s Opinion Letter FLSA 2018-18

Recently, the U.S. Department of Labor (DOL) issued an opinion letter in response to a company’s questions about travel time pay for a group of hourly employees who repair, inspect and test construction cranes. The employees do not have a fixed work location; they travel to various customer locations each day. They usually work eight to twelve hour days servicing cranes, and generally start work at around 7:00 a.m. Depending on the availability of parts and other factors, the employees may need to stay in a hotel overnight and return in the morning to complete a job. Employees are provided company vehicles that may be used for both work and personal matters.

Three travel time scenarios were considered by the DOL:

(1) Employee travel time from home to the company’s office, using a company vehicle, to obtain a job itinerary and then continue on to various customer locations. Travel time from home to office varies from 15 minutes to an hour, depending on where the employee lives.

(2) Employee travel time from home directly to a customer location; and

(3) Employee travel time by plane on a Sunday from home to an out-of-state destination for a company training that begins at 8:00 a.m. on Monday. The training continues through Friday, with return travel home on Friday after class, or occasionally on Saturday, depending on flight availability.

The first two scenarios involve common commutes to and from work. Under the Portal-to-Portal Act, employees do not need to be paid for time spent commuting between home and work. This generally holds true, even when the employee travels directly from home to different job sites, unless the commute time involved is extraordinary. Once the employee has arrived at the job, however, FLSA regulations require payment for all travel time between job sites during the day. Use of a company-provided vehicle within the normal commuting area typically does not convert the employee’s ordinary commute into compensable work time.

Scenario three implicated how to account for employee travel time away from home, both on the weekend and overnight. Travel away from home is clearly worktime when it cuts across the employee’s usual work day; the employee is simply substituting travel for usual job duties. This also includes travel time on Saturday and Sunday that corresponds to the employee’s normal working hours on other days of the week. The DOL also noted that an employee must be paid for all time the employee is actually required to work while on travel, irrespective of whether or not it falls within the employee’s regular work day.

What Does this Mean to You?

Calculating employee travel time can pose a significant challenge for many employers. There are multiple factors you must take into account, even when an employee is traveling within his home territory. There are no bright lines to establish when an employee has strayed outside his normal commuting area, converting what would have been an unpaid commute into time on the clock. The FLSA requires employers to maintain accurate time records for employees; a failure to do so can result in significant statutory damages and attorneys’ fees.

If you find yourself facing such employee travel circumstances as described here, the employment law attorneys at Bean, Kinney & Korman can assist in evaluating your company’s particular environment and help craft a reasonable solution that will address the situation.

• R. Douglas Taylor, Jr.

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Fair Labor Standard Act (FLSA) & Travel Time

General rules.

A. Excluding normal commuting time, employees should be compensated for all travel unless:

• It is overnight; or
• No work is performed.

B. An employer may rearrange the work schedule within the workweek (Sunday – Saturday) to avoid additional compensation hours that may occur because of travel time or compensable commuting time as described below. Whenever possible, the employer and employee should discuss the possibility of rearranging the work schedule prior to departure.

Commute Time

Generally, an employee is not at work until he or she reaches the work site and begins working. A. If the employee is required to report to a meeting place where he or she is to pick up materials, equipment, or other employees, or to receive instructions before traveling to the work site, time is compensable only once the employee reaches the meeting place. If the employee drives a state vehicle, to and from work, he or she does not have to be compensated for that commuting time as long as:

• Driving the vehicle between home and work is strictly voluntary and not a condition of employment;
• The vehicle is a type normally used for commuting;
• The employee incurs no costs for driving the employer’s vehicle or parking it at home; and
• The work sites are within normal commuting area of the employer’s place of business.

Note: Unless there is a contract, custom or practice providing that an employee’s regular daily travel time between home and the workplace is compensable, such travel time is not compensable. If such a contract, custom or practice exists, the travel time is compensable.

Travel During the Workday

Travel as a part of the employee’s principal activity must be counted as hours worked. If the travel is for the benefit of the employer, it is compensable.

• Example: the employee travels from job site to job site during the workday.

B. If the employee runs an errand (i.e., stops at a business or at home) for his or her own convenience, the time traveling to/from that site that adds additional time is not compensable.

• Example: the employee leaves home for the work site but stops at a shop for his or her own convenience.

C. Time spent by the driver in picking up other passengers and transporting them to a specific location is work time and therefore compensable. The time the picked-up passengers spend traveling in the car is also compensable.

Out of Town Travel - Special One Day Assignment

A. If the employee is assigned to work in another city for one (1) day and the travel is performed for the employer’s benefit and at its request, it is part of the principal activity of the employee and therefore is compensable. This is true even if the employee is traveling by common carrier since this is a special assignment and is not ordinary home to work travel. The assignment is performed for the employer’s benefit and at the employer’s special request to meet the needs of the particular and unusual assignment. B. However, in this special one-day assignment, travel time between the employee’s home and the airport or railway station is considered commute time and, therefore, is compensable.

Overnight Travel

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is work time and is compensable. A. Travel time is compensable regardless of work schedule.

• Example: Employee drives to the airport to attend a seminar and has two co–workers as passengers with him/her. Whether the trip is made during normal workdays/workhours or non-normal workdays/workhours (i.e. Saturday or Sunday for an employee who works Monday through Friday) the travel time is compensable; all three employees are compensated.

B. Time spent at a motel with freedom to use time for the employee’s own purposes is not compensable.

C. Time Zone Changes – If the time zone changes during the travel day, the hours should be calculated based upon “actual” hours when calculating compensable time on travel days. A department may wish to use Central Standard Time (CST) for travel days to assist in determining work hours. Local time should be used for all other days of the travel.

• Example: Employee left Lawrence at 9:00 a.m. CST to travel to the airport and arrived at a hotel in Phoenix at Noon Pacific Standard Time (PST) (which is 2:00 CST). Actual hours of travel are 5 hours (9 am to 2:00 CST).
• Example: Employee left a hotel in San Francisco at 8 a.m. PST (which is 10:00 a.m. CST) to travel to the airport and board a return flight. Employee returns to Lawrence at 1:00 p.m. CST (11:00 p.m. PST). Actual hours of travel are 3 hours (10:00 a.m. to 1:00 p.m. CST).

Additional Resources:

Fair Labor Standards Act (FLSA)

University Fair Labor Standards Act (FLSA) Policy

A. When the travel takes place inside or outside the employee’s normal workdays or work hours; the employee is required to be compensated for the travel time to the airport or hotel, regardless of whether the employee is a driver or a passenger. B. The employee is compensated for all required conference events that require the employee to engage in training, attend a meeting, or listen to a speaker. The employee is not compensated for time at social events, meals without speakers or meals when work is not being performed. C. An employer, or the employee with prior approval of the employee’s supervisor, may rearrange the employee’s work schedule within the workweek to avoid additional compensation hours. D. If the time zone changes during the travel day, you will need to count “actual” hours. To determine work hours on travel days, use the Central Standard Time (CST) Zone for both days in order to avoid disadvantaging the employee due to time changes. For non-travel days, use local time.

Travel Example 1 – No Adjustments to Schedules

For this example, the conference began Sunday night at 5:15 pm with a business meeting and ended on Wednesday at Noon. The employee worked his/her normal schedule the days following the conference. No time zone differences.

Total compensation for the day is 8.25 hours (for hours 9:40 am to 6:00 pm).

Total compensation for the day is 8 hours (for hours 8:00 am to Noon and from 12:30 pm to 4:30 pm).

Total compensation for the day is 9.5 hours (for hours 8:30 am – 6:00 pm)

Thursday (back in the office)

Total compensation for the day is 8 hours (for hours 8 am to 5 pm).

Friday (Back in office)

Total compensation for the week is 49.75 hours (i.e., 40 hours at regular time and 9.75 hours at compensatory time earned at the time and a half rate, i.e., 9.75 x 1.5 = 14.25).

Travel Example 2 - Adjusted Work Schedule

For this example, the supervisor has informed the employee that any hours incurred that may result in extra compensation will be adjusted in the remaining workweek. The supervisor has determined the employee should leave early on Thursday and not work on Friday. The conference began Sunday night at 5:15 pm with a business meeting and ended on Wednesday at Noon. No time zone differences.

Total compensation for the day is 8 hours (for hours 8:30 am to 4:30 pm).

Thursday (Back in Office)

Total compensation for the day is 6.25 hours (for hours 8 am to 3:15 pm). No leave is reported.

Friday (No work performed)

Total compensation for the day is 0 hours .

Total compensation for the week is 40.00 hours.

Travel Example 3 – Time Zone Change

Sunday (travel day, so using cst)..

For this example, the employee’s workstation is in Lawrence, Kansas (CST) and the conference is located in Oakland, CA, which is in the PST time zone (i.e., 2 hours earlier). The conference began Sunday night at 5:15 pm (PST) with a business meeting and ended on Tuesday at Noon (PST).

Actual times shown are CST [PST is shown in brackets]

Total compensation for the day is 8.25 hours (for hours 9:40 am to 6:00 pm CST).

Actual times shown are PST as “local” time.

Tuesday (Travel day, so using CST)

Total compensation for the day is 9.5 hours (for hours 10:30 am – 8:00 pm CST).

Total compensation for the 3 days (Sunday, Monday and Tuesday) is 25.75 hours.

FLSA and Travel Time Guidelines for Overtime Eligible Employees (Effective: 05/21/2017)The University of Kansas, Human Resources, Carruth-O’Leary Hall, Room 103, 1246 West Campus Road, Lawrence, KS 66045, 785-864-4946 (voice), 785-864-5790 (fax), [email protected] (email).

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“Travel Time” in California – 5 Key Things to Know

Posted on September 26, 2023

In California, travel time is when your employer requires you to be at a designated place and controls how you get there . Because of this control, travel time is compensable in California. It often occurs when your employer makes you go from one worksite to another , or use the employer’s transportation from a designated meet-up spot.

Five key things to know about travel time are:

• it does not cover your normal commute ,
• it has to be at least the minimum wage ,
• it can result in overtime pay ,
• California laws are more generous to workers than federal law, and
• you may also get mileage reimbursement .

1. Travel time does not cover your normal commute

Under California law, your “ hours worked ” are those that your employer either:

• suffered or permitted you to work, or
• subjected you to the employer’s control. [1]

California courts have ruled that this does not cover your normal commute to and from your work location. You can choose how to commute and can do purely personal pursuits on the way to or from the job site. Therefore, there is insufficient control exerted by your employer to make it compensable time. [2]

However, there are some circumstances where your employer exerts enough control to change your commute time and entitle you to employee travel time.

For example : Raymond is a farm worker. His employer requires him to drive to a parking lot and then to take the employer’s bus to the work site. The portion of Raymond’s commute in the bus is compensable travel time because he is under the control of the employer. [3]

2. Travel time pay has to be at least the minimum wage

California labor law requires all of your hours worked to be compensated with at least the minimum wage . This includes your travel time .

If your employment agreement does not specify your travel time pay, then it must be paid at your regular rate of pay . However, many employers specify a lesser hourly rate for travel time. So long as this different rate is at or above the minimum wage, it is allowed.

3. It can add work hours and entitle you to overtime pay

If you are a nonexempt worker , the hours you work in travel time can put you over the daily or weekly limit and entitle you to overtime pay .

California’s wage and hour laws protect nonexempt employees. They are entitled to:

• meal periods and rest breaks , and
• overtime pay.

That overtime pay is one-and-a-half, or 1.5, times your regular rate of pay . You get this higher rate of pay for every hour you work in excess of:

• 8 hours in a workday,
• 40 hours in a workweek , or
• 6 consecutive days in the workweek. [4]

You can also be entitled to double-time pay , or twice your regular rate of pay , for hours worked more than :

• 12 hours in a single workday, or
• 8 hours on the 7th consecutive day of a workweek. [5]

Because travel time is “hours worked,” it can push you over these limits and entitle you to the applicable overtime rate. Many workers do not realize how easily travel time can add to the number of their regular work hours.

4. California law is more generous than federal employment law

California employment law is more generous than federal law regarding travel time. Regulations for the federal Fair Labor Standards Act (FLSA) define “ work time ” as when you are “ suffered or permitted ” to work. [6] The extent of your employer’s control over you is not a factor under federal law.

This means that circumstances where your employer is controlling you but you cannot work would not be compensable under federal law. This makes it less likely that you would be entitled to travel pay under federal law.

5. Work-related travel can also entitle you to a mileage reimbursement

If you use  your own transportation or personal vehicle during travel time, you may also be entitled to mileage reimbursement in California.

State law requires California employers to cover their employee’s expenses during employer-required travel. [7] This includes reimbursing you for your:

• gasoline costs,
• vehicle depreciation from normal wear and tear,
• car maintenance and repair costs,
• fees for vehicle registration, and
• auto insurance.

Your employer must have a valid means or method of determining the amount of these reimbursements. [8] Many companies use the Internal Revenue Service’s (IRS) reimbursement rates for travel expenses.

What can I do if my employer is not paying me travel time pay?

If your employer is not paying you for your travel time, you can file a wage and hour claim . This can recover your unpaid wages, plus interest and attorney’s fees and court costs. It can be filed as a lawsuit or as a claim with the Labor Commissioner at the California Division of Labor Standards Enforcement (DLSE).

Legal References:

[1] 8 California Code of Regulations (CCR) 11040(2)(K) (also known as the Industrial Welfare Commission (IWC) Wage Order No. 4-2001 ).

[2] Morillion v. Royal Packing Co. , 22 Cal.4th 575 (2000) .

[4] California Labor Code 510 LAB.

[6] 29 CFR 785.11.

[7] California Labor Code 2802 LAB.

[8] Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal.4th 554 (2007) .

About the Author

Neil shouse.

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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Hours of Work for Travel

Fact sheet: hours of work for travel, description.

In limited circumstances, travel time may be considered hours of work. The rules on travel hours of work depend on whether an employee is covered by or exempt from the Fair Labor Standards Act (FLSA). For FLSA-exempt employees, the crediting of travel time as hours of work is governed under title 5 rules-in particular, 5 U.S.C. 5542(b)(2) and 5544(a)(3) and 5 CFR 550.112(g) and (j). For FLSA-covered employees, travel time is credited if it is qualifying hours of work under either the title 5 rules or under OPM's FLSA regulations-in particular, 5 CFR 551.401(h) and 551.422.

Employee Coverage

Title 5 overtime laws and regulations apply to most FLSA-exempt Federal employees, including General Schedule and prevailing rate employees. Certain employees, such as members of the Senior Executive Service, are not eligible for overtime pay or other premium pay under title 5. (See 5 U.S.C. 5541(2) and 5 CFR 550.101 for coverage rules.)

OPM's FLSA regulations apply to most FLSA-covered Federal employees. (See 5 U.S.C. 5542(b)(2) and 5544(a)(3) and 5 CFR 551.102.) An employee may determine his or her FLSA status by checking block 35 of the most recent Notification of Personnel Action (SF-50) to find out whether his or her position is nonexempt (N) or exempt (E) from the overtime pay provisions of the FLSA. Alternatively, an employee may obtain a determination from his or her servicing personnel office.

Overtime Work

In general, overtime hours are hours of work that are ordered or approved (or are "suffered or permitted" for FLSA-covered employees) and are performed by an employee in excess of 8 hours in a day or 40 hours in a workweek. (See 5 U.S.C. 5542(a), 5544(a), and 6121(6) and (7), and 5 CFR 550.111 and 551.501. Note exceptions.)

Travel That is Hours of Work Under Title 5

Under 5 U.S.C. 5542(b)(2) and 5 CFR 550.112(g), official travel away from an employee's official duty station is hours of work if the travel is-

• within the days and hours of the employee's regularly scheduled administrative workweek, including regularly scheduled overtime hours, or
• involves the performance of work while traveling (such as driving a loaded truck);
• is incident to travel that involves the performance of work while traveling (such as driving an empty truck back to the point of origin);
• is carried out under arduous and unusual conditions (e.g., travel on rough terrain or under extremely severe weather conditions); or
• results from an event that could not be scheduled or controlled administratively by any individual or agency in the executive branch of Government (such as training scheduled solely by a private firm or a job-related court appearance required by a court subpoena).

An agency may not adjust an employee's normal regularly scheduled administrative workweek solely to include travel hours that would not otherwise be considered hours of work.

Travel That is Hours of Work Under the FLSA

For FLSA-covered employees, time spent traveling is hours of work if-

• an employee is required to travel during regular working hours (i.e., during the regularly scheduled administrative workweek);
• an employee is required to work during travel (e.g., by being required to drive a Government vehicle as part of a work assignment);
• an employee is required to travel as a passenger on a 1-day assignment away from the official duty station; or
• an employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee's regular working hours. (See 5 CFR 551.422(a).)

Official Duty Station

"Official duty station" is defined in 5 CFR 550.112(j) and 551.422(d). An 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.

Administrative Workweek

An administrative workweek is a period of 7 consecutive calendar days designated in advance by the head of an agency under 5 U.S.C. 6101. The regularly scheduled administrative workweek is the period within the administrative workweek during which the employee is scheduled to work in advance of the administrative workweek. (See definitions in 5 CFR 610.102. See also 5 CFR 550.103 and 551.421.)

Commuting Time

For FLSA-covered employees, normal commuting time from home to work and from work to home is not hours of work. (See 5 CFR 551.422(b).) However, commuting time may be hours of work to the extent that the employee is required to perform substantial work under the control and direction of the employing agency-i.e., productive work of a significant nature that is an integral and indispensable part of the employee's principal activities. The fact that an employee is driving a Government vehicle in commuting to and from work is not a basis for determining that commuting time is hours of work. (See Bobo decision cited in the References section.)

Similarly, for FLSA-exempt employees, normal commuting time from home to work and from work to home is not hours of work. (See 5 CFR 550.112(j)(2).) However, commuting time may be hours of work to the extent that the employee is officially ordered or approved to perform substantial work while commuting.

Normal "home-to-work/work-to-home" commuting includes travel between an employee's home and a temporary duty location within the limits of the employee's official duty station. For an employee assigned to a temporary duty station overnight, normal "home-to-work/work-to-home" commuting also includes travel between the employee's temporary place of lodging and a work site within the limits of the temporary duty station.

If an employee (whether FLSA-covered or exempt) is required to travel directly between home and a temporary duty location outside the limits of the employee's official duty station, the time the employee would have spent in normal commuting must be deducted from any hours of work outside the regularly scheduled administrative workweek (or, for FLSA covered employees, outside corresponding hours on a nonwork day) that may be credited for the travel time. (The travel time is credited as hours of work only as allowed under the applicable rules-e.g., for an FLSA-covered employee, if the travel is part of a 1-day assignment away from the official duty station.)

• 5 U.S.C. 5542(b)(2) (General Schedule employees)
• 5 U.S.C. 5544(a)(3) (Prevailing rate employees)
• 5 CFR 550.112(g) and (j), 610.102, and 610.123
• 5 CFR 551.401(h) and 551.422 (OPM's FLSA regulations)
• Decision by United States Court of Appeals for the Federal Circuit, Jerry Bobo v. United States , 136 F.3rd 1465 (Fed. Cir. 1998) affirming Court of Federal Claims decision of same name, 37 Fed. Cl. 690 (Fed. Cl. 1997).
• Section 4 of the Portal-to-Portal Act of 1947 (61 Stat. 84) as amended in 1996 by section 2102 of Public Law 104-188. (See 29 U.S.C. 254.)

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When is travel time considered as hours worked?

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The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

AT A GLANCE:

All the time during which an employee is required to be on duty or to be at the employer’s premises or to be at a prescribed workplace, and all the time during which an employee is suffered or permitted to work is considered as compensable work hours. (Section 3, Rule I, Book III, Omnibus Rules to Implement the Labor Code)

Travel time is considered as hours worked when: (1) employee is called to travel during emergency; (2) travel is done through a conveyance furnished by the employer; (3) travel is done under vexing and dangerous circumstances; and (4) travel is done under the supervision and control of the employer.

The Omnibus Rules to Implement the Labor Code provides that all the time during which an employee is required to be on duty or to be at the employer’s premises or to be at a prescribed workplace, and all the time during which an employee is suffered or permitted to work is considered as a compensable work hours. (Section 3, Rule I, Book III, Omnibus Rules to Implement the Labor Code)

Generally, travels from home before an employee’s regular workday and returns to his home at the end of the workday is not considered as hours worked.

However, travel time is considered as hours worked when: (1) employee is called to travel during emergency; (2) travel is done through a conveyance furnished by the employer; (3) travel is done under vexing and dangerous circumstances; and (4) travel is done under the supervision and control of the employer.

“Travel that is all in a day’s work”

Time spent by an employee travelling from one jobsite to another during the workday must be counted as hours worked.

When an employee is required to report at a meeting place to receive instructions or to perform other work there, the travel from the designated place to the workplace is part of the day’s work.

“Travel away from home”

Travel away from home refers to the travel that keeps an employee away from home overnight. It is considered work time when it cuts across the employee’s workday.

Such time spent traveling away from home is hours worked not only during regular working hours but also during the corresponding hours on non-working days.

Read also: When are power interruptions or brownouts considered as working hours?

Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding taxation and taxpayer’s remedies, you may reach us at [email protected], or dial us at (02)7745-4391/0917-5772207.

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FLSA Hours Worked Advisor

Travel Time

• Home-to-Work and Return Travel
• Home-to-Work and Return Travel, Employer’s Vehicle
• Travel Other Than Home-to-Work and Return
• Work Performed While Traveling

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Travel time as hours of work, applicability.

This information 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.

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 discretionary 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 schedulable 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 the section titled Premium Pay and Training.

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.

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If someone travels for their job - Working time rules

• Understanding the Working Time Regulations
• The 48-hour weekly maximum
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If someone travels for their job

• Jobs with different rules
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In some cases, travel time to and from work counts as working time.

If an employee has a fixed place of work

If an employee has a fixed place of work (such as an office they go to every day), their regular travel time to and from work does not usually count as working time.

If an employer wants to count this travel time as working time, they can.

Travel time while at work will usually count as working time, for example when travelling:

• from one client to the next
• from an office to a meeting elsewhere

Find out about the maximum hours an employee can work in a week

If the employee has no fixed place of work

Some jobs have no fixed place of work. These are often jobs where the employee spends a lot of time visiting customers or clients. People who do this work are sometimes known as 'peripatetic workers'. 

These types of jobs can include:

• care workers
• plumbers and other tradespeople
• teachers who work at different schools over the working day
• travelling salespeople

Travel between home and work is likely to count as working time for peripatetic workers. This is because during this time, the person is classed as doing work for their employer – for example, the employer may change or add tasks.

Pay when travel time counts as working time

When travel time counts as working time, the pay an employee gets depends on the terms of the employment contract. 

When calculating pay the employer must follow the law on the National Minimum Wage. It includes different rules on how working time affects minimum wage calculations.

• use the minimum wage calculator on GOV.UK
• find out more about how minimum wage is calculated on GOV.UK

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Laws on Work Hours for Salaried Employees

Written by Salary.com Staff

June 17, 2024

When creating a team, employers need to decide whether to pay their workers with salaries or hourly wages. This choice depends on how the company is set up, the type of industry, what each job involves, and labor laws like the Fair Labor Standards Act (FLSA). Before considering these factors, business owners who are new to hiring must first understand what it means to have salaried employees.

What is a Salaried Employee?

A salaried employee is a worker who receives a set amount of pay regularly, whether weekly or monthly, regardless of how many hours they work. This is different from hourly employees, who get paid based on the number of hours they work.

Salaried employees are usually expected to complete their tasks regardless of how long it takes, whether they work a full day or just part of the day.

Important Facts About Federal Labor Laws for Salaried Employees

Federal labor laws, especially the Fair Labor Standards Act (FLSA), are crucial in outlining the rights and responsibilities of salaried workers in the United States. These laws include specific rules for different types of employees, such as exempt and non-exempt workers. The FLSA sets a basic national standard, but states can enforce stricter rules if they choose.

The Role of the Department of Labor

The U.S. Department of Labor (DOL) is a key in making sure federal labor laws are followed. They provide helpful information and guidelines to help employers understand and comply with the FLSA. The DOL ensures that employees' rights are protected, especially regarding salary, minimum wage, and overtime pay.

Changes to the FLSA and their impact

Proposed changes to the FLSA, especially regarding the salary threshold for exempt employees, are important. The DOL has suggested increasing the minimum salary needed to be exempt from overtime pay. When this change happens, many workers who are currently exempt may become non-exempt, meaning they can qualify for overtime pay.

Employers will need to watch these changes carefully to stay compliant with the law. They may need to adjust their payroll and human resource practices to comply with the new rules.

Salary vs. Hourly Pay

How are salary and hourly pay different? Explore their differences here.

A salaried employee receives a fixed amount of money regularly, no matter how many hours they work each week. For instance, when an employee is paid $1000 every week, they get this amount even if they work fewer or more than 40 hours. A salary can only be reduced when the employee misses an entire workday. Calculating overtime for salaried employees can be complicated (more on this later).

The main advantage of salary pay is stability. While hourly employees have their hours (and pay) cut due to business needs, salaried employees get the same pay even if they work less, as long as they meet their job requirements.

An hourly employee earns money based on the hours they work. Their pay changes depending on the number of hours worked each week. For example, when an employee earns $15 per hour and works 40 hours in a week, they make $600. When they work 39 hours, they make $585.

Hourly employees often benefit from overtime protections under the Fair Labor Standards Act (FLSA). They are entitled to extra pay when they work more than 40 hours in a week.

Minimum wage

The FLSA also sets the minimum wage, the lowest amount an employee can be paid per hour. The lowest pay set by the federal government is $7.25 hourly, but some states enforce higher minimum wages .

Overtime pay

According to the FLSA, overtime is any work done beyond 40 hours in a week. Employees protected by the FLSA must be paid at least 1.5 times their regular pay rate for overtime hours.

For example, when an hourly employee earns $15 per hour and works 41 hours in a week, their pay is calculated as follows:

Regular pay for 40 hours: $600 (40 hours x $15)

Overtime pay for 1 hour: $22.50 (1 hour x $15 x 1.5)

Total pay: $622.50

Remember, not all employees qualify for overtime pay, and understanding which employees are exempt from these rules is crucial for employers.

How Does Overtime for Salaried Employees Work?

Overtime pay is an important part of the Fair Labor Standards Act (FLSA), but many people misunderstand how it applies to salaried employees. Not all salaried employees are automatically exempt from overtime.

Overtime pay rules

According to the FLSA, non-exempt employees must receive overtime pay for hours worked over 40 in a week. This overtime pay is one and one-half (1.5) times their regular pay rate.

Federal overtime guidelines

The Department of Labor has rules to help decide whether salaried employees are exempt or non-exempt from overtime. These rules include the salary basis test and the duties test.

Exempt employees, who usually have executive, professional, or administrative jobs, must meet certain job duty requirements and earn a salary of at least a specific minimum amount.

As of 2024, this minimum salary is $684 per week, which equals $35,568 per year. Remember, this amount may become different depending on state laws.

Common misunderstandings

Many people think that all salaried employees are exempt from overtime, no matter what their job duties or salary are. It's important to know that exemption depends on more than just being salaried.

Factors such as job duties, hours worked, and salary level are all important. Employers need to classify employees correctly to follow the FLSA rules and avoid breaking the law.

Other Salary Laws and Exceptions

Besides paying some salaried employees overtime, there are other rules you need to know when handling payroll. Some of these rules are for specific industries, while others apply to almost all businesses.

7i Exemption

The FLSA has special rules for retail employees who earn commissions. Section 7i of the law says that these employees must remain getting at least minimum wage and the right overtime pay. Retail workers, such as salespeople and some service providers, who meet the 7i exemption requirements may not need to be paid overtime. These conditions are subject to change from week to week.

To qualify for the 7i exemption, three conditions must be met:

• The employee must work for a retail business.
• The employee must be paid more than 1.5 times the minimum wage after including commissions.
• The employee's earnings must be mostly from commissions, constituting over fifty percent of their total pay.

This calculation is complex, and there's no easy way to tell whether an employee is exempt from overtime pay. For salaried employees who earn commissions, there may be a need to recalculate their hourly rate with commissions each week to see whether they meet the exemption criteria.

Union rules

Under U.S. law, companies must negotiate with labor unions for any union employees. For instance, when you hire an electrician from a union, you’ll need to work with union representatives to agree on things such as:

• Working hours
• Working conditions
• Pay (including overtime)

For some salaried employees, you may need to follow specific rules outlined in local union agreements, called collective bargaining agreements (CBAs). While these rules aren't laws, you are legally required to follow them, and they can greatly affect your payroll.

Understanding the rules about work for people who earn a salary can get tricky. The laws can change often, so it's important to keep track of decisions made by government agencies such as the Department of Labor.

Download the 2018 Turnover Report:

Download our 2018 Turnover Report to compare your organization's turnover rate with averages in your industry and geographic region. View national and regional numbers by industry for voluntary and total turnover, as well as five-year trends.

Download our white paper to further understand how organizations across the country are using market data, internal analytics, and strategic communication to establish an equitable pay structure.

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Breaks and Meal Periods

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Federal law does not require lunch or coffee breaks. However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), federal law considers the breaks as compensable work hours that would be included in the sum of hours worked during the workweek and considered in determining if overtime was worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished.

Meal periods (typically lasting at least 30 minutes), serve a different purpose than coffee or snack breaks and, thus, are not work time and are not compensable.

Webpages on this Topic

Hours Worked Under the Fair Labor Standards Act (FLSA) Provides general information about what constitutes compensable time under the FLSA.

Wage and Hour Division's Frequently Asked Questions Answers questions about breaks.

What Does the Fair Labor Standards Act (FLSA) NOT Require? The FLSA does not require meal or break periods.

Regulations on Rest Periods Makes the distinction between rest periods of 5 to 20 minutes and compensable waiting time or on-call time, all of which are paid work time.

Regulations on Meal Periods Meal periods are not compensable work time.

General Information About the Fair Labor Standards Act (FLSA) An overview of many aspects of the FLSA, ranging from child labor to enforcement.

Handy Reference Guide to the Fair Labor Standards Act Answers many questions about the FLSA and gives information about certain occupations that are exempt from the Act.

Coverage Under the Fair Labor Standards Act (FLSA) Fact Sheet General information about who is covered by the FLSA.

Wage and Hour Division: District Office Locations Addresses and phone numbers for Department of Labor district Wage & Hour Division offices.

State Labor Offices/State Laws Links to state departments of labor contacts, and information on state minimum wage rates and other state child labor topics.

Regulations on this Topic

Regulations on rest and meal periods make a distinction between rest periods (usually lasting 5 to 20 minutes) and compensable waiting time or on-call time, all of which are paid work time and meal periods (typically lasting at least 30 minutes that are not compensable work time.

• 29 CFR 785.18 - Rest Periods.
• 29 CFR 785.19 - Meal Periods.

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• Deploying record numbers of law enforcement personnel, infrastructure, and technology to the Southern border;
• Seizing record amounts of fentanyl at our ports of entry;
• Revoking the visas of CEOs and government officials outside the U.S. who profit from migrants coming to the U.S. unlawfully; and
• Expanding efforts to dismantle human smuggling networks and prosecuting individuals who violate immigration laws.

President Biden believes that securing the border is essential. He also believes in expanding lawful pathways and keeping families together, and that immigrants who have been in the United States for decades, paying taxes and contributing to their communities, are part of the social fabric of our country. The Day One immigration reform plan that the President sent to Congress reflects both the need for a secure border and protections for the long-term undocumented. While Congress has failed to act on these reforms, the Biden-Harris Administration has worked to strengthen our lawful immigration system. In addition to vigorously defending the DACA (Deferred Action for Childhood arrivals) policy, the Administration has extended Affordable Care Act coverage to DACA recipients and streamlined, expanded, and instituted new reunification programs so that families can stay together while they complete the immigration process.  Still, there is more that we can do to bring peace of mind and stability to Americans living in mixed-status families as well as young people educated in this country, including Dreamers. That is why today, President Biden announced new actions for people who have been here many years to keep American families together and allow more young people to contribute to our economy.   Keeping American Families Together

• Today, President Biden is announcing that the Department of Homeland Security will take action to ensure that U.S. citizens with noncitizen spouses and children can keep their families together.
• This new process will help certain noncitizen spouses and children apply for lawful permanent residence – status that they are already eligible for – without leaving the country.
• These actions will promote family unity and strengthen our economy, providing a significant benefit to the country and helping U.S. citizens and their noncitizen family members stay together.
• In order to be eligible, noncitizens must – as of June 17, 2024 – have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements. On average, those who are eligible for this process have resided in the U.S. for 23 years.
• Those who are approved after DHS’s case-by-case assessment of their application will be afforded a three-year period to apply for permanent residency. They will be allowed to remain with their families in the United States and be eligible for work authorization for up to three years. This will apply to all married couples who are eligible.  
• This action will protect approximately half a million spouses of U.S. citizens, and approximately 50,000 noncitizen children under the age of 21 whose parent is married to a U.S. citizen.

Easing the Visa Process for U.S. College Graduates, Including Dreamers

• President Obama and then-Vice President Biden established the DACA policy to allow young people who were brought here as children to come out of the shadows and contribute to our country in significant ways. Twelve years later, DACA recipients who started as high school and college students are now building successful careers and establishing families of their own.
• Today’s announcement will allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas.
• Recognizing that it is in our national interest to ensure that individuals who are educated in the U.S. are able to use their skills and education to benefit our country, the Administration is taking action to facilitate the employment visa process for those who have graduated from college and have a high-skilled job offer, including DACA recipients and other Dreamers. 

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ICYMI: Microsoft President Testifies on Past Security Failures, Accountability Measures in Wake of Chinese Hack of Government Accounts

June 17, 2024

WASHINGTON, D.C. ––  Last week, the House Committee on Homeland Security, led by Chairman Mark E. Green, MD (R-TN), held  a hearing  to examine Microsoft’s security culture in the wake of the  Cyber Safety Review Board’s (CSRB) report  on the Microsoft Online Exchange 2023 cyber intrusion by Storm-0558, a threat actor affiliated with the People’s Republic of China (PRC). Witness testimony was provided by Microsoft Vice Chairman and President Brad Smith, who accepted Microsoft’s responsibility in his opening statement for the intrusion that successfully compromised 22 enterprise organizations and over 500 individuals globally, including federal government accounts, due to what the CSRB described as “a cascade of failures” by Microsoft. Chairman Green and Ranking Member Bennie Thompson (D-MS) formally requested Smith’s testimony  on May 9 .    In the hearing, members highlighted the risks associated with Microsoft’s presence in China, its approach to artificial intelligence (AI) development and deployment, Microsoft’s current and future approaches to business decisions, and the company’s plans to strengthen cybersecurity measures following the intrusion. Members also discussed the January 2024 cyber intrusion by “Midnight Blizzard,” a state-sponsored cyber actor affiliated with the Russian Foreign Intelligence Agency that was also responsible for the attack on SolarWinds in 2020.   Although the Committee commends Microsoft for announcing steps to reform its security practices, ensuring follow-through on the company’s stated commitments will be crucial for ensuring U.S. government networks and Americans––including U.S. officials––are not exposed to further risk.

In his opening statement,  Chairman Green  highlighted the broader questions the Committee must examine regarding the mitigation of economic and national security risks: “To be clear, the U.S. government would never expect a private company to work alone in protecting itself against nation-state attacks. We need to do more work to define roles and responsibilities for public and private sector actors in the event of nation-state attacks on our networks.  Our nation’s adversaries possess advanced cyber capabilities and substantial resources, often exceeding the defensive cybersecurity measures available to even the most sophisticated companies. However, we do expect government vendors to implement basic cybersecurity practices. ”   “First, closing the cyber workforce gap—my top priority for the Committee this year. The security challenges we face as a nation are compounded by the persistent shortage of cybersecurity professionals. As Microsoft continues its work to invest in our cyber workforce, we must harken back to the lessons from the CSRB report. Our cyber professionals must be trained to think of security first. We must equip them with the right skills to protect our networks and to build our systems securely. Second, we need to define the role of public and private sector entities in protecting our networks against nation-state actors. These attacks have become increasingly common, rather than anomalies. We need clearly defined responsibilities so that we can effectively respond to nation-state attacks on our networks. Finally, we must address a fundamental issue: the economic incentives that drive cybersecurity investments. As the CSRB’s report recently revealed, underinvestment in essential security measures exposed critical vulnerabilities.”

Subcommittee on Transportation and Maritime Security Chairman Carlos Gimenez (R-FL) highlighted the dangers of doing business in Communist China and asked Smith if Microsoft shares critical information on cybersecurity with the Chinese Communist Party (CCP)––as companies are required to do under Chinese law:   “This law requires all organizations and citizens to cooperate with China’s intelligence agencies, including the People’s Liberation Army, in matters of national security. While the law does not specifically mention companies working in China, it does apply to all organizations operating within the country, including foreign companies. [Do] you operate in China?”   Smith answered:    “Yes, we do”   Gimenez continued:    “Do you comply with this law?”   Smith answered:    “No, we do not”   Gimenez continued:    “How is it you got away with not complying with the law? Do you have a waiver from the Chinese government saying you don’t have to comply with this law?”   Smith answered:    “But there are many laws– there are two types of countries in the world. Those that apply every law they enact, and those that enact certain laws but don’t always apply them. And in this context, China, for that law, is in the second category.”   Gimenez continued:    “Do you really believe that because––look, I sit on the Select Committee on China, and that’s not the information that we get––that all companies in China have to cooperate with the intelligence agencies of China and the People’s Liberation Army. You operate in China, and you’re sitting there telling me that you don’t have to comply with the laws of China?”   After pressing Smith further, Gimenez later concluded:    “I’m sorry, I just––for some reason, I just don’t trust what you’re saying.”

Subcommittee on Border Security and Enforcement Chairman Clay Higgins (R-LA)  asked Smith why Microsoft did not correct, in a timely manner, its inaccurate public statements about the 2023 cyber intrusion:   “After the hack, the 2023 Microsoft Online Exchange intrusion, why did it take six months for Microsoft to update the means by which most Americans would sort of be made aware of such a hack?”   Smith answered:    “First of all, I appreciate the question, it’s one that I asked our team when I read the CSRB report. It’s the part of the report that surprised me the most. You know, we had five versions of that blog, the original, and then four updates. And we do a lot of updates of these reports. And when I asked the team, they said the specific thing that had changed, namely a theory, a hypothesis about the cause of the intrusion, changed over time. But it didn’t change in a way that would give anyone useful or actionable information that they could apply—”   Higgins continued:    “Mr. Smith, respectfully, that answer does not encourage trust. And regular Americans listening are going to have to move the tape back on the Microsoft instrument and listen to what you said again. But you didn’t do it, I mean, you’re Microsoft, [you] had a major thing happen, and the means by which you communicate with your customers was not updated for six months. So I’m just going to say that I don’t really accept your answer as thoroughly honest.”   Smith answered:    “I said the same thing, and we had the same conversation inside the company.”  

Congresswoman Laurel Lee (R-FL)  asked Smith how to improve the victim notification process in the wake of the challenges that Microsoft faced in notifying those impacted by the 2023 Storm-0558 hack:   “I’d like to hear more about one of the things that was identified in the report as an area in need of improvement––victim notification. So, I’d like for you to elaborate a little bit more on your thoughts and going forward plan on how to improve victim notification.”   Smith answered:    “When we find that someone has been a victim of an attack, it doesn’t mean that the fault was ours, it’s just that our threat detection system may have found it. We need to let them know. Well, how do you let somebody know? If it’s an enterprise, we probably have a connection, there’s probably somebody there we can call. But if it’s a consumer, like a consumer-based email system, we don’t necessarily know who the human is, we just have an email address. So, we send an email.    “There was a member of Congress we sent an email to last year. That member of Congress did what you sort of expect, they said well, that’s not really Microsoft, is it? It’s spam. […] That’s the world in which we live. And so, the CSRB has a great recommendation on this. It’s to create the equivalent of the Amber Alert. But it will require support from congress that CISA lead this, that the tech sector, and probably the telecommunications companies, and the phone makers, and the phone operating system makers all come together. This would be a huge step forward.”

Congressman Dale Strong (R-AL)  pressed Smith on any vulnerabilities still present in Microsoft’s products due to the length of time the threat actor had access to stolen credentials:   “What are the security implications of China and other potential threat actors having access into your network for so long? What is the threat of that, you know, thank goodness it was discovered, but what is the threat do you see for them being in your system for so long without being noticed?”   Smith answered:     “I would just like to qualify a little bit of the premise, because I noticed in some of the questions that were floating around this week that people suggested that because the Chinese had acquired this key in 2021 and we didn’t find it until 2023 that they must’ve had access for two years. I think that in fact they kept it in storage until they were ready to use it, knowing that once they did, it would likely be discovered quickly.”   Strong continued:    “Thank you, and that leads to my next question. Are the Chinese still able to access Microsoft’s corporate network today?”   Smith answered:    “No, not with anything they did before, and [we] do everything we can do to ensure they don’t get in any other way.”

Subcommittee on Emergency Management and Technology Chairman Anthony D’Esposito (R-NY )  asked Smith why the government should continue using its products after the CSRB questioned Microsoft’s ability to prevent future hacks without an “overhaul” of its security culture:   “Are you confident that moving forward Microsoft has the ability to quickly detect and react to an intrusion like this?”   Smith answered:    “I feel very confident that we have the strongest threat detection system that you’re going to find in, quite possibly, in any organization private or public on the planet. Will that always mean we will be the first to find everything, well no, that doesn’t work that way. But I feel very good about what we have, and I feel very confident about what we’re building.” In his closing remarks,  Chairman Green  highlighted the importance of public-private partnerships in cybersecurity and harmonizing regulations in order to prevent future intrusions:   “Sometimes government, in this public-private partnership that we talked about a couple times … sometimes the government can get in the way too, and I want to ask that you educate us as much as possible. I will give you an example. The SEC ruling, the four-day report for a breach. Some of the big cybersecurity companies, I mean the biggest in the nation, told me it [takes] seven or eight days to fix a breach. We are announcing to the world that, at four days, we have a hole in the wall, and it takes seven days to close a hole––this is the government forcing companies to invite the enemy to come in. That is a stupid regulation.    “We need help on understanding where the government also creates problems, so I would appreciate anything that comes to mind. One of the initiatives here, we talked about cyber workforce, one of the other initiatives is the synchronization of the regulations that are out there, making sure we are not duplicative, and we aren’t contradictory, because as I understand there are some regulations that are.”   “If we are causing you to have duplicitous effort, that is money that could be spent on real cybersecurity. In this partnership, we need communication, not just on the issues that are brought up here––the breach that was identified––but how we make things better and work better on how we regulate and create compliance requirements.”