by Greg Reigel
© Copyright 2022. All rights reserved.
Published in Midwest Flyer Magazine December 2022/January 2023 Digital Issue
I am frequently asked by private pilots whether they can be reimbursed for their use of either an owned or rented aircraft in connection with their employment. In certain limited circumstances, they may. However, to do that, private pilots must be clear on both the privileges and limitations allowed by the Federal Aviation Regulations (“FARs”) for their airmen certificates.
Private Pilot Privileges and Limitations
FAR Section 61.113(a) provides that “no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, for compensation or hire, act as pilot in command of an aircraft.”
The FAA’s longstanding policy and perspective views “compensation” very broadly. Compensation is not just the exchange of cash. Rather, it can be receipt of anything of value that is conditioned upon or in exchange for operation of the aircraft. The FAA considers an employee’s receipt of salary or wages, building of flight hours paid by the employer, or reimbursement of expenses to be compensation.
The Incidental To Employment/Business Exception
Fortunately, even though a private pilot is receiving salary or wages or other “compensation,” this is not as complete a prohibition as it appears. In addition to other exceptions, Section 61.113(b) states “[a] private pilot may, for compensation or hire, act as pilot in command of an aircraft in connection with any business or employment if:
(1) The flight is only incidental to that business or employment; and
(2) The aircraft does not carry passengers or property for compensation or hire.”
So, when is a flight “incidental to employment?” According to the FAA, determining whether a flight is merely incidental to employment, rather than a necessary or major part of the private pilot’s job, is “a qualitative judgment based upon a number of factors.” What does that really mean?
Well, it means the FAA will look at each situation on a case-by-case basis and ask a number of questions to make its determination. The questions may include, but are not limited to, the following:
a. Is the private pilot’s operation of an aircraft a condition of employment or advancement; or a part of the pilot’s job description? If it is, then the private pilot’s flights would likely not be “incidental” to his or her employment.
b. Does the private pilot receive additional compensation, over and above his or her normal income, for operating an aircraft? If so, the private pilot’s operation of the aircraft is likely not merely “incidental” to his or her work.
c. What percentage of the private pilot’s work time is spent operating an aircraft? The greater the percentage, the less likely the flight operations are “incidental” to his or her employment.
Similarly, the FAA will evaluate whether the private pilot’s flights are a foreseeable and regular/normal part of the pilot’s employer’s business. If they are, then those flights would not be “incidental to business” and would not be permitted under Section 61.113(b). And, of course, qualifying for this exception also assumes that the flights are not carrying any passengers or property.
Conclusion
Although a private pilot is generally precluded from being paid for flying, a private pilot may still receive compensation (as broadly defined by the FAA) if the flights are incidental to the pilot’s employment or business. However, private pilots should ensure that they meet all of the requirements of the exception permitting compensation. If the private pilot fails to satisfy those requirements, his or her certificate could be at risk.
EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Melton, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. He has more than two decades of experience working with airlines, charter companies, fixed base operators, airports, repair stations, pilots, mechanics, and other aviation businesses in aircraft purchase and sales transactions, regulatory compliance including hazmat and drug and alcohol testing, contract negotiations, airport grant assurances, airport leasing, aircraft-related agreements, wet leasing, dry leasing, and FAA certificate and civil penalty actions. For assistance, call 214-780-1482, email: greigel@shackelford.law, or Twitter @ReigelLaw (www.shackelford.law).
