When paying a nonexempt employee (sometimes referred to as an hourly employee), the two most important things to consider are paying at least minimum wage and, if applicable, overtime. However, these simple rules get a lot more complicated by the fact that what is considered work is not always obvious.
A lot of these complications come together when an employee attends a conference. For example, is it not uncommon for an employer to ask whether they need to pay for the travel to and from a hotel during the conference. When do employers need to pay for attendance at the conference? What minimum wage applies? What about a get-together with the conference attendees after the seminars?
These are all questions that have tripped up employers, and we will attempt to provide some answers to each of them.
At the onset, it is important to note that an employee needs to be paid if they are working. Therefore, in the examples below, we will assume the employee is not working unless otherwise noted. For example, there may be times when an employee does not need to be paid while flying on a plane. However, if they are working on their laptop during the flight, they would need to be paid.
Is travel to and from a hotel work?
Once an employee is in the conference location (hopefully someplace warm with a beach), that becomes the employee’s new work location. Therefore, travel from the hotel to, for example, the conference center becomes their normal work “commute” and does not need to be paid. Like commute times at their regular work location, if they are asked to go back to their hotel to pick up business cards, that trip would be hours worked. Lastly, at the end of the conference, when traveling back to the hotel, that would be a normal commute and not need to be paid. That leads us to our next problem. What about the time spent at the conference?
Is attendance at the conference considered working?
Attendance at lectures, meetings, training programs, and similar activities does not need to be counted as working time if the following four criteria are met:
If any one of these criteria is not met, the employee must be paid for the attendance. Therefore, if a conference occurs during normal working hours, the employee needs to be paid for their attendance. If the employee is told they need to go to the conference, then attendance is not voluntary, and they must be paid. Even if three of the four are met, the employee needs to be paid because all four must be met for the time not to be paid.
An example of a situation where attendance would not need to be paid would be a weekend seminar on playing the guitar for a nurse at an assisted living facility. The nurse may have become interested in the guitar due to the music performances at the facility, but if it was their voluntary decision to go to the seminar and it was on a day they had off and they performed no work, then they would not need to be paid. This is the case even if the seminar makes it so that the nurse is more marketable and can now work in a different role in the facility because playing the guitar does not directly relate to their nurse position.
What about the minimum wage?
Speaking of getting paid, often, conferences are in a location outside the employee’s normal work state or city. As such, this may also be a location with a different minimum wage. For example, a nonexempt employee in Alabama can be paid $7.25 per hour. If that same employee were to go to Las Vegas for a conference, the Nevada minimum wage is $12.00 per hour. The Alabama employee may need to be paid Nevada minimum wage because the work is being performed in Nevada. Some minimum wage rules have a time when the minimum wage kicks in so employers should discuss the rules with an attorney if they are planning to send an employee to a conference location with a higher minimum wage.
Many times, conference attendees will go to dinner after the seminars with other conference attendees. This time is likely not hours worked and does not need to be paid. It is no longer hours worked once the employee leaves the seminars and can use their time as they please. If an employee is getting dinner with friends they met at the conference, the employee is no longer attending the seminar and is using the time as they please. This is the case even if their employer is paying a portion or all of the cost of the dinner. On the other hand, the result would be different if the employee was told to meet up with prospective clients or entertain a current client. This would likely be hours worked because the employee is performing work for their employer. They are not able to use the time as they please.
Attending a conference can be a benefit for many employees. However, employers will want to make sure they pay their nonexempt employees appropriately to avoid a conference hangover. As with all wage and hour questions, the specifics facts can change the outcome. Learn more about the topics discussed in this article in Employers Council’s Hours Worked and Travel Time Pay whitepapers. Consulting and Enterprise members can contact an Employers Council attorney with questions.