DOL Opinion Letter: Compensable Travel Time From A Virtual Office

Sherman & Howard L.L.C.

Sherman & Howard L.L.C.

The U.S. Department of Labor issued Opinion Letter FLSA2020-19, providing helpful guidance for employers dealing with the potential “new normal” of employees working from home, both now and post-pandemic. In so doing, they have clarified that time employees spend traveling between the office and telework (e.g., at home) is generally not compensable if there is sufficient time between when they end their work at one location and begin their work at the next to permit the employees to perform personal tasks.

While an employee is not entitled under the Fair Labor Standards Act (FLSA) to receive pay for hours they are off-duty, under the “continuous workday” doctrine, an employee’s travel time between worksites (including home and office) after they have started working for the day is ordinarily compensable time. However, this most recent Opinion Letter clarifies that an employee’s travel time for personal reasons (whether prior to, during, or after their regular workday) is non-compensable time, even if the employee changes work locations after attending to those personal matters. In such instances, the employee would either be considered off-duty or engaged in normal commuting. For example, if an employee starts their workday virtually at home in the morning and runs personal errands on their way into work for the afternoon, such travel time is not compensable. However, if an employee virtually begins their principal work activities and then heads straight to the office, such travel time may be compensable. The difference? The employee’s ability to control what he or she does in the intervening time between one work location and the next.

Under the “continuous workday doctrine,” the entire period between commencement and completion of an employee’s job activities on a workday—beginning when the employee undertakes “a task that is integral and indispensable to the employee’s duties”—is compensable. The DOL’s Opinion Letter explains that while this doctrine still generally exists, there is an exception to this rule when the employee controls his or her movements from one worksite to another and is capable of performing personal tasks during the intervening time. This Opinion Letter also clarifies that checking email or performing preliminary work before leaving home in the morning does not ordinarily begin the continuous workday. Similarly, evening preparatory or administrative work does not extend the continuous workday after an employee returns home. The DOL describes the test of a continuous workday as whether a task must be performed at a specific time or place, or whether the time could be used “effectively for [the employee’s] own purposes.” The letter also provides several helpful examples of when the compensable workday begins and ends.

For Colorado employers, while the recent updates to state wage laws found in COMPS Order #37 substantially expanded what is included in compensable travel time, on their face, these state law requirements do not conflict with the DOL’s most recent interpretation of compensable travel time under federal law. Under state law, time spent traveling “for the benefit of an employer” must be compensated, which would not include personal errands during the workday. Normal home-to-work travel is specifically excluded from Colorado’s definition of compensable travel time. Colorado’s “continuous workday” doctrine, however, may complicate a determination of when the workday begins or ends for teleworking employees under Colorado law. For example, Rule 1.9.1 requires compensating for time that an employee is “remaining at the place of employment awaiting a decision on job assignment or when to begin work.” Clear communication with employees may alleviate any risks associated with this potential discrepancy. Best practices with non-exempt employees who are permitted to telework include establishing definite start/stop times and requiring employees to track all hours worked on a daily basis. Employers should also establish policies applicable to circumstances under which an employee is expected, or permitted, to travel between home telework and an office during the workday and whether employees may be compensated for travel between the two, absent business need. One clear takeaway: each employee’s situation may differ, so it is important to evaluate compensability of travel time on a case-by-case basis.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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