The U.S. Department of Labor’s Wage and Hour Division recently issued an opinion letter (“Letter”) regarding how to address travel time when employees divide their workday between their home and the employer’s place of business. This is particularly relevant for employers in the age of COVID-19 where their workforces are working fully or partially remotely.
The Letter states that when an employee arranges for her workday to be divided into a block of time worked at home and a block of time worked at the office, separated by a block reserved for the employee to use for his/her own purposes, the employer need not compensate the employee for the block of time reserved for his/her own purposes, “even if the employee uses some of that time to travel between home and office.”
As the letter explains, the Fair Labor Standards Act defines an employee “working” as a situation where an employee’s action or actions are primarily for the benefit of her employer. This time is obviously compensable. A good example of this definition in action is the fairly well settled determination that an employee (usually hourly) working through lunch must be compensated for that time; however, an employee that is entirely relieved from his/her duties for the lunch period need not be compensated for the time. An employee does not need to be paid for hours that are “off duty,” which are periods when the employee is relieved of her duties long enough to enable his/her to effectively use the time for his/her own purposes. Additionally, travel or commuting time to work from home (and vice versa) before and after a regular workday is specifically excluded from compensable hours.
The letter goes on to explain that “travel time must be counted as hours worked when it is part of an employee’s principal activity, such as travel from worksite to worksite during the day.” A good example of this is when IT on-site techs travel between one client site and another. However, if an employer does not require an employee to travel as part of his/her work, then any travel the employee does is voluntary during his/her off-duty time.
The Letter states an employee need not be compensated for commute time between the home/a third location and the office where the employee chooses to telework for part of the day in order to attend a personal event or task (e.g. school conference, doctor’s appointment) and then work part of the time in the office. However if the employer regulates the employee’s activities during the time between the remote and in-office work (e.g. requires the employee to return phone calls during the commute), the time becomes potentially compensable.
Employers should note that certain states and local jurisdictions have stricter requirements than the federal standards regarding telecommuting and commuting. Virtus Law, PLLC continues to monitor developments in this area and will continue to post relevant updates to this website.