Due to the pandemic, remote work is bubbling up new wage and hour issues for employers. Is a non-exempt employee that works from home but must travel into the office during the day legally owed payment for travel time from home to office?

The DOL responded no, it is not hours worked. This is despite the travel time crossing the normal workday and occurring after some work was performed at the employee’s home office.

In Opinion Letter FLSA 2020-19 issued December 31, 2020 the DOL responded to an employer’s request for an opinion on several travel time scenarios. The employer had an employee that chose to telework part of the day and work at the office part of the day while completing personal tasks in between. The employer provided two examples pertaining to the employee’s work schedule and travel to and from work during the normal workday.

In the first example the employee starts work from the office but then attends a parent teacher conference from 1:30 – 2:15 p.m. The employee then drives 30 minutes to her home to complete her workday there. In this scenario, four situations involving the workday travel time and personal time as hours worked are looked at.

            Is travel time hours worked if:

                        She immediately resumes work when she gets home;

She devotes an hour to personal activities upon arriving home and then resumes working;

She devotes two hours to personal activities upon arriving home and then resumes working or;

She devotes at least an hour to personal activities before driving home, devotes at least another hour to personal activities upon arriving home and then resumes working?

General Wage and Hour Rules:

• Non-exempt employees do not need to be paid for hours that they are off-duty – when completely relieved from duties long enough to enable them to effectively use the time for their own purposes.

• Time spent in normal commuting or travel from home to work and work to home in a day is also specifically excluded from compensable hours.

• The period between the commencement and completion on the same workday of an employee’s principal activity(ies) is generally considered compensable. This is known as the continuous workday doctrine (29 C.F.R. Sec. 790.6 (b). This doctrine is applicable after the worker performs their first principal duty.

Keep in mind that travel that is part of the workers principal activity (duty is to regularly travel between worksites for example) is considered part of that job’s work, and therefore in that situation, is compensable.

In the employee’s situation addressed in the Opinion Letter travel is not part of the job’s normal workday. So that general rule would not apply here.

In the situation where the employee works at her office in the morning and then leaves for the parent teacher meeting in the afternoon, the time involved for the conference is given off, and therefore once she leaves the office travel time and the meeting time is hers. Travel time to the meeting does not have to be compensated for in that situation.

In a second situation posited to the DOL for opinion, the requestor asks what if the employee has a doctor’s appointment from 8:30 to 9:15 a.m. and then the employee goes to their work office after? But the employee started work early that morning before they went to this doctor’s appointment? The DOL responded the travel time from home to the doctor’s office and from the doctor’s office to her work office is again her own time and not compensable.

But what about the continuous workday doctrine? Doesn’t it state that work performed after the first task is performed would require compensation thereafter? No, said the DOL. If an employee and an employer arrange for a block of time during the normal workday to allow the employee time to do personal business, then that reserved time and anything else done for personal benefit is now considered off duty time. This includes travel time between the two work locations (home and office).

The Department of Labor opined that the Fair Labor Standards Act (FLSA) “recognizes that employment is a relationship both parties enter into for their mutual benefit, and as such employee rights … are not always separate from and at odds with their employer’s interests.”

In all scenarios presented, the DOL concluded that when an employee “(a) chooses to perform some work before traveling to the office or (b) chooses to perform work at home after leaving the office, and in either case has sufficient time in between her telework and office work period to use effectively for her own purposes, the time she spends between home and office is not compensable”

Source: Department of Labor Opinion Letter FLSA2020-19