Calculation of "hours of service" when employees are not paid by the hour.

[Guest Diane DuFresne]

Have a situation where an employer is paying some of it's employees (bus charter company) by the hour and some of it's employees (drivers) by the miles they drive. How would they determine when an individual has met the 1,000 hour eligibility when they are being paid by miles driven vs. hours worked?

I am aware of the elapsed time method but these employees are not full time so not sure this would work.

Any thoughts would be appreciated.

Thanks,

Diane

[Mike Preston]

You can certainly use elapsed time, if you wanted. Part time and full time would be treated the same.

Alternatively, you can use the DOL equivalencies. Either:

1) 190 hours for each month during which 1 hour was worked

2) 45 hours for each week during which 1 hour was worked

3) 10 hours for each day during which 1 hour was worked

There may be another one in there somewhere.

[Brian Gallagher]

couldn't there be something written into the plan stating that x miles = y hours?

[Guest tcv]

Note that minimum wage laws are always based on hours worked. Some employers who pay on some other base have had to install time clocks so that employees can be paid for when they are not working, for example, if they have reported for work but are waiting for the weather to improve so they can actually start work for the day.

[GBurns]

Good point tcv!!

What is the legal rationale for paying an employee (not an Independent Contractor) on a basis other than hourly, salary, commission or piece work (which I do not think is still allowed but which has/had a statutory provision)?

[Guest dogsbody]

I suspect you are going to be stuck with an equivalency for the paid-by-the-mile people. A few thoughts: 1. The fact that they are not full time does not mean that an equivalency cannot be used. 2. The plan will have to provide for the equivalency. DOL Reg § 2530.200b-3©. 3. If the employer does not pay by the hour but does keep track of hours, it could use the actual hour method for people paid by the mile, but this sounds unlikely. Remember, the rules require that not just hours worked be tracked, but also hours for which people are “paid, or entitled to payment . . . on account of a period of time during which no duties are performed . . . due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence.” DOL Reg § 2530.200b-2(a). 4. The other equivalency is 95 hours for each semi-monthly payroll period. DOL Reg § 2530.200b-3(d). There are also equivalencies based on working time and earnings (hourly rates), but these are both time-based, so they will not help. 4. Nothing I know of in the regulations or other guidance suggests that a miles-to-hours measurement could be used.