travel expense reimbursement for a W2 employee

I had interviewed for, and subsequently received an offer for W2 subcontract employment from a contracting company in NY state for work in NY state. I am a resident of Florida. Both during the talks with the initial recruiter, it was made very clear to me verbally that this position was considered a "travel job" and it was acknowledged that I was a resident of Florida and would be only living temporarily in NY state for the length of the contract. As such, I would also receive a per diem as 'compensation' for my expenses while in NY state. The per-diem is only broken down into "lodging" and "meals". No mention however, was made of reimbursement for travel expenses to and from my residence in Florida during the contract. I am a subcontractor through a consulting company, and the actual client is a large Government defense contractor.

I relocated at my own expense to NY state after accepting the position. After speaking
with many other contractors at work who are in similar, and sometimes identical positions, I have not run across anyone who does not have their travel expenses reimbursed from the client 100% for travel to their residences, whether in-state or otherwise. They are also W2 contractors, though working through a different subcontracting company.

During the first week of work, I was presented with all the usual W2 worker paperwork, including the 'company policy', and 'travel policy', etc. The travel policy makes it perfectly clear that as an EMPLOYEE, I am entitled to have my travel expenses reimbursed. I was subsequently told after inquiring on this matter that 'that does not apply to me'. I was told in a round about way that the per diem I receive "is sufficient enough to take care of my travel expenses or some such verbage. It is not.

Is this subcontracting company violating NY employment law? I feel these are fraudulent business practices. As a W2 employee, who was told that I am working a travel job, I feel that my travel home on the weekends should be reimbursed as any other subcontractor. Or, is this a case of "buyer beware" where I should have required it up front before accepting the position?

1 answer  |  asked Feb 7, 2008 8:19 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Relocation costs/Commuting Expenses

There is no law, federal or New York State, requiring an employer to reimburse relocation expenses. An employer could be held liable for relocation expenses only if the employer has agreed to payment of such expenses.

Although I have yet to see a case on this, generally, an employer is required to reimburse employees for expenses incurred by the employees for the employer's benefit. Thus, if you worked at an ice cream stand, and, at the employer's direction, you went out an purchased more ice cream to sell at the stand, and if you paid for the ice cream out of your own pocket, your employer would be obligated to pay you back for the cost of the ice cream. You would also be entitled to other expenses incurred in getting the ice cream, such a tolls you had to pay to get to and from the ice cream distributor.

But not every conceivable cost that an employee might incur in connection with a job is necessarily an expense incurred for the employer's benefit. For example, your employer might have a dress code. After you are hired, you may need to buy an entirely new wardrobe. You would not be entitled to reimbursement for the cost of the new wardrobe.

Generally, an employer is not obligated to pay employees for time and expenses incurred getting to and from work (commuting expenses). This can create a lot of confusion. For example, let's say you're an outside salesperson. If you went to the office first, then went to your first stop, the employer would be obligated to pay for your time and expense between the office and the first customer. That you not be considered commuting. But if you travelled from home to your first customer stop, that would be commuting, and the employer would not be obligated to pay your time and expenses in that case.

Please note that the attorneys answering questions on this website cannot give specific answers to specific situation posed by members of the public. We use the basic factual situations presented by questions to provide general answers.

If you require an answer specific to your situation, you should set up a consulation with a qualified attorney. You could be charges a fee for such a consultation.

posted by David M. Lira  |  Feb 8, 2008 12:17 PM [EST]

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