The U.S. Department of Labor (DOL) weighed in again on the question of employee travel time between home and office, i.e., whether or under what circumstances it is compensable under the Fair Labor Standards Act (FLSA) for “an employee who chooses to telework for part of the day and work at the office for part of the day.” When employees must be paid for travel time has been a long-standing source of confusion for employers, as evidenced by the frequency of the U.S. Department of Labor’s (DOL) opinion letters addressing it.

The root of the confusion that the DOL has repeatedly tried to clarify is easy to identify: The FLSA requires employers to pay employees for their “work” but does not clearly or adequately explain under what circumstances an employee is actually considered to be at “work.”

In July 2018, the DOL dealt with payment of travel time scenarios in the context of a group of construction company employees who repaired, inspected, and tested construction cranes, working at different job sites, sometimes within the employees’ usual commuting distance and other times at remote or out-of-town work sites.

Fast forward to August 2020 when the DOL again looked to the construction industry to try to clarify under what circumstances “travel to and from home or a place of lodging at either end of the workday” is merely ordinary commuting time and is not compensable work time, for a group of non-exempt laborers and foremen who sometime worked at a fixed location and other times were assigned to different construction sites involving more travel time to get there.

In both instances the DOL distinguished between those job sites that were more-or-less within the employee’s usual commute time to and from the employer’s home office, finding the time generally not compensable, and other job sites that required significantly longer commute times, overnight stays, or out-of-town travel, with the DOL concluding that such time is generally compensable.

Now, with more than half of all employees in the U.S. teleworking on many, if not all, days since the COVID-19 pandemic began, and many employers expecting to continue to utilize teleworking even when the public health crisis abates, perhaps it was inevitable that the DOL would take up the issue of when an employee “who chooses to telework for part of the day and work at the office for part of the day . . . while completing personal tasks in between. . .” must be paid for the travel time involved?

The DOL’s Part-Day Telework Scenarios

Partial Telework Scenario One: Employee had a parent-teacher conference at her child’s school from1:30 p.m. to 2:15 p.m. The employer permitted her to attend the conference and then work from home rather than returning to the office. She left her office at 1:00 p.m., drives 30 minutes to the school, and met with the teacher for 45 minutes; the travel time from the school to her home was 30 minutes.

The employer asked the DOL: Was the time spent driving from office to the school and from the school to home compensable travel time under the FLSA, assuming the employee performed no work during her commutes? Did the outcome depend on whether the employee:

• Immediately resumed work when she got home?
• Devoted an hour to personal activities once at home and then resumed working?
• Devoted two hours to personal activities once at home and then resumed working?
• Devoted an hour to personal activities before driving home, and devoted another hour to personal activities upon arriving home, and then resumed working?

Partial Telework Scenario Two: Employee had a doctor’s appointment from 8:30 a.m. to 9:15 a.m. The drive from her home to the doctor’s office was 45 minutes. The drive from the doctor’s office to the employer’s office was 15 minutes. Employer permitted the employee to work from home before driving to her appointment and to work the rest of the day after the appointment at her regular office location.

To start the day, the employee:

• worked at home from 5:00 a.m. to 6:00 a.m.,
• was free to perform personal activities between 6:00 a.m. and 8:00 a.m.,
• left for her appointment at 8:00 a.m.,
• finished her appointment at 9:15 a.m., and
• arrived (and begins working) at her office at 9:30 a.m.

At the end of the day, the employee:

• left her office;
• commuted home as usual, and
• performed no work either during the commute or after she arrived home.

The employer posed two related questions to the DOL:

• Is the employee’s one hour of travel time from home to the appointment and the appointment to the office compensable?
• Is the employee’s commute time from her office to home, where she first began working that day, compensable?

The FLSA Basics

The Supreme Court explained many years ago that “work” time under the FLSA occurs when an employee’s activities are controlled or required primarily for the benefit of the employer. Under what is known as the “continuous workday doctrine,” “work” is the period between the “commencement and completion on the same workday of an employee’s principal activity or activities.” It is generally compensable time.

Normal commuting or travel time, i.e., an employee’s ordinary travel from home to work before the regular workday and travel from work to home at the end of the workday, is not compensable, provided that the employee does not perform any work duties during the commute. In contrast, however, travel that is a part of an employee’s principal activity, e.g., travel between different worksites between the start and the end of the workday, is considered part of the employee’s workday and must be paid.

How Do the FLSA Basics Play Out for Part-Day Telework Employees?

In the first partial-day telework scenario above, the DOL concluded that the employee’s travel time “is not compensable because she [was] either off duty or engaged in normal commuting.” From 1:00 p.m., when the employee left the office, and when she resumed work at 2:45 at the earliest, she was “off-duty.” The time was the employee’s to do as she pleased, and she was able to freely choose the hour at which she resumed working. Thus, she was no longer performing any duties for the employer and is not entitled to be paid for that time.

The DOL reached the same outcome in the second part-day telework scenario. While the employee was on duty at 5:00 a.m. of her own volition and was entitled to be paid for the time she worked, at 6:00 a.m., she was unquestionably off duty and free to use her time between then and when she resumed working at 9:30 a.m. Thus, that time is not compensable. Her travel time home at the end of the workday was ordinary commuting time and not compensable.

In addition, in both scenarios, travel time between the employee’s home, the personal appointment, and the employer’s office was not compensable travel time between worksites under the continuous workday doctrine, according to the DOL.

What Does this Mean to You?

Calculating employee travel time can pose significant challenges for many employers, especially for those with variable telework schedules. There are multiple factors you must consider, and there are few bright lines to establish when an employee is at “work,” converting what would have been an unpaid commute into time on the clock.

If you find yourself facing questions about employee travel circumstances, such as those described above, the employment law attorneys at Bean, Kinney & Korman can assist in evaluating your company’s specific questions and in crafting reasonable solutions. Please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.