Employees Splitting Working Time Between the Office and Home? The DOL Reminds Employers About the Rules on When Commute Time is Compensable in the New Age of Telework

Pullman & Comley - Labor, Employment and Employee Benefits Law

One of the consequences of the pandemic has been the increased prevalence of remote work or telework. As more and more people are vaccinated and life returns to something like pre-pandemic normalcy, it is not clear to what extent telework will remain as a regular feature of the American workplace, though it is likely to be more common than before the pandemic. Even for those businesses that are transitioning back to in-person, on-site work, some use of telework is likely to remain. Employees’ ability to perform work either at home or in the office invites employers to consider their wage and hour obligations and remember when travel time is compensable.

Fortunately, the Department of Labor’s Wage and Hour Division has issued a helpful reminder of these rules in a recent Opinion Letter, as they pertain to teleworking employees who may be choosing to split their working time between their home and the office during the work day, and who complete personal tasks while traveling in between periods of work.

The General Rules on Travel Time

Under the Fair Labor Standards Act, employees must be paid whenever they are “working” – put another way, whenever their action is primarily for the benefit of the employer. For this reason, employees do not need to be paid for periods when they are completely relieved of their duties and are able to effectively use such time for their own purposes. An employee also does not need to be paid for the time spent in the normal commute to work from their home, and from work back home. This is because under the continuous workday doctrine, an employee is not considered to be on duty until they have performed their first principal work activity of the day – that is, a task which is integral and indispensable to the duties they were hired to perform. However, travel is a principal activity for some employees, such as when travel between different worksites during the workday is required. In that case, travel is considered part of the day’s work and is compensable, although travel from home to the first worksite of the day and travel home from the last worksite generally is not compensable.

When Teleworking Employees Commute During the Workday

In its Opinion Letter, the Wage and Hour Division analyzed whether an employee’s travel time is compensable in two different circumstances involving telework: (1) when an employee who starts their day working from home travels to a personal appointment and then afterwards travels to the office to resume the work day, and (2) when an employee starts the day working from home, commutes into the office at some point, and then returns home to resume teleworking. In these examples, the employer is not requiring the employee to travel as part of their work, but rather the employee is choosing to travel for their own purposes.

In the first situation, an employee’s travel time from home to a personal appointment is not compensable where they are no longer performing work for the employer and is considered non-compensable time since they are free to use their time for their own purposes before resuming work. The time that the employee has reserved to attend the appointment is off-duty time and therefore not compensable. The same conclusion is reached in the second situation as well, where the employee arranges their workday to be divided into blocks of time for work at home and work at the office. The time in between these blocks, that is reserved for the employee to use for their own purposes, is not compensable even if some of that time is used to travel between home and the office. It should be noted the employer in these examples did not require the employee to perform work at any particular time. If that had been the case, the Wage and Hour Division states that it is possible such travel time may be compensable.

In any event, the Wage and Hour Division’s ultimate opinion is 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 periods to use effectively for her own purposes, the time she spends traveling between home and office is not compensable.”

Takeaway

The Wage and Hour Division’s Opinion Letter serves as a reminder to employers that even though the workplace may be becoming more virtual, the old rules still apply. Of course, the availability and practicality of remote work will differ among different employers and different employees. The nature of the business, the employees’ job duties and responsibilities, and overall business necessity all play a part in determining how an employer will continue to meet its wage and hour obligations as telework arrangements grow in popularity. Employers should be mindful of these complexities and consult counsel as issues arise to ensure full compliance with applicable laws, regulations, and DOL guidance.

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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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