Jonathan F. Whalen, Esq., Campbell Durrant, P.C. | April 2021
With the prevalence of remote work due to the pandemic, employers are asking how non-exempt employees are compensated if they travel from their home office to a worksite within the same workday. The U.S. Department of Labor (“DOL”) issued an Opinion Letter on December 31, 2020 addressing this question against the backdrop of the following principles: 1) the Fair Labor Standards Act (“FLSA”) requires that employees be compensated for “working,” which means that they must be compensated for actions taken “for the benefit of the employer,” 2) an employee does not need to be paid for hours that she is off duty, and 3) normal commuting is specifically excluded from compensable hours.
The first scenario described by the DOL involved a non-exempt employee attending a parent-teacher conference. The employee left her regular office at 1:00 p.m. to travel to the school, attended the conference, then traveled thirty minutes back to her home, where she resumed working remotely. The DOL concluded that none of the travel time was compensable. During the time between the employee’s departure from her office until her arrival at home, “her time [was] hers to do with as she please[d],” and she was not “performing compensable work for the employer.” Whether the employee immediately began working upon her arrival back home or performed other personal tasks before resuming work did not change the analysis because in either case the travel time would have taken place while the employee was “free to use her time…for her own purposes before resuming work.”
The second scenario described by the DOL involved a non-exempt employee with a doctor’s appointment. Before leaving for her 8:30 a.m. appointment, the employee performed remote work from 5:00 to 6:00 a.m. After the appointment, the employee traveled to her employer’s worksite where she worked for the remainder of the day. The DOL again concluded that none of the travel time was compensable, even though the employee began working remotely before her appointment. While the hour spent performing remote work is of course, compensable, the journey from the employee’s home to the doctor’s office and from there to the worksite constituted personal travel and commuting time, respectively. Thus, starting at 6:00 a.m., the employee was “off duty” and had “a block of time to use…for her own purposes,” and all time between 6:00 a.m. and when the employee resumed working at her office remained non-compensable because this time constituted a “block” of “reserved time” which was not compensable.
The DOL summarized its conclusions by stating that “when an employee…chooses to perform some work before traveling to the office or…chooses to perform work at home after leaving the office, and in either case has sufficient time in between her telework and office work periods to use…for her own purposes, the time she spends traveling between home and office is not compensable.”
The DOL also explained that the travel time in these two scenarios was not compensable under either the “worksite-to-worksite” travel doctrine, which states that travel time between worksites is compensable, or the “continuous workday” doctrine, which generally states that time between an employee’s first and last principal activities is compensable. The DOL pointed out that the employer in these scenarios was “not requiring the employee to travel as part of her work,” and thus the travel time was not compensable as “worksite-to-worksite travel,” and additionally that the employee had been “relieved from duty” during the travel periods, and thus such “reserved time” was not compensable under the “continuous workday” doctrine.
One unanswered question is whether non-exempt employees must be compensated for travel time when their workday is split between the home and regular worksite and the employee is not free to run personal errands or attend a personal appointment in the time in between working at two different locations. For example, what if the employer requires the employee to start their day from the home office and to then immediately report to the employer’s worksite at 11:00 a.m., with no personal time provided in between the change in locations? Under the “continuous workday” and “worksite-to-worksite” doctrines, such travel time may be compensable. Notably, the answer on compensability in that scenario likely depends whether it was the employee or employer who chose to split the workday between the home and regular office.
When evaluating whether travel time is compensable for non-exempt, teleworking employees, employers should consider whether the travel constitutes nothing more than commuting time, and whether it takes place during periods where the employee has been relieved from duty. In those scenarios, the time is not compensable. On the other hand, travel time by non-exempt employees may be compensable if the employer required the employee to split their day between two locations, including a home office, with no time provided for personal errands or personal appointments during the change in work locations. And of course, if travel is required by the employer, or is undertaken for the employer’s benefit, such time is compensable.