Today's reality requires many companies to fly their employees around the globe for meetings, seminars, conferences and for providing services to clients. Is an employee entitled to payment for flight hours made by the employee for its employer?
The Israeli Hours of Work and Rest Law enacted in the early 50s did not anticipate this global reality and defines working hours as the hours during which the employee is available for the employee's work and the employee's employer. Under this approach it was held that the employee's working hours do not include the time spent commuting to the work place. This, as mentioned above, for the simple reason that the employee is not available to work during such travel time. Until recently, there were contradictory rulings on the subject of flight hours, and sometimes there was a distinction between the time spent traveling to the airport and the time that the employee spent waiting for the flight or flying. Traveling to the airport has not been calculated as work hours while waiting for the flight and flight was. In some cases the Courts distinguished between flights on weekends and holidays and flight during working and between short and long flights. Many employers set provisions as to such topic into the employment agreements, but because labor laws are considered non-dispositive legislation is unclear whether such provisions will be enforced by the Labor Courts.
On November 5, 2015, the National Labor Court issued a ruling that may settle once and for all this issue. The case concerned an employee who demanded additional payment in respect of overseas travel time. The employee signed an employment agreement that included a clause whereby the employee committed to work wherever the company conducts business and the Court held that the employee was aware that the employment includes trips abroad and that the employee's salary was significantly higher than the average wage in such field of employment. The Court held that in principle hours spent by the employee traveling overseas to customers are hours in which the employee was not available to work and therefore do not qualify for payment as work hours.
Accordingly, and in light of such ruling, if the intention of employer is to hire employees who will be required to spend some (but not most) of their working hours overseas in order to supply services to customers, we recommend that the employment agreement will specifically state so. It is also advisable to state in the employment agreement that the employee's salary includes payment for flight time. A paragraph that explicitly stating the requirement for travel and including compensation for such hours in the employee's salary will make it very difficult for the employee to later claim a right to additional payments for flight time. Naturally, it is advisable that all employment agreement be prepared by an attorney acquainted with this topic, even if the employer has a template used for employment agreement, because sometimes a slight change to the template may have material consequences.