Remote Work and Payment for Commute Time

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With employees continuing to have remote schedules or with the implementation of hybrid work schedules, questions continue to arise for hourly employees on what is paid or unpaid time. Questions occur when employees may have fluid schedules, such as running errands in the middle of the day only to go to a meeting at the office later.

The DOL opinion letter FLSA 2020-19, dated December 31, 2020, may be useful for employers who feel that these issues are more complex due to the hybrid schedule. This opinion letter looks specifically at travel time for an employee who chooses to work remotely part of the day and work in the office for the other part. It also addresses a large number of fact patterns, including an employee who had a one-hour commute time to work. We cover two fact patterns below.

Fact Pattern Example 1

The employee worked in the office in the morning, had a parent-teacher conference for 45 minutes in the afternoon, and then decided to work from home for the rest of day rather than return to work.

In its opinion letter, the DOL notes: “In general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities” is considered compensable pursuant to the continuous workday doctrine. The DOL further points out that travel between different worksites is generally considered compensable.

In these examples, the DOL determined that when the employee left the office to attend her child’s conference, the time from when she left the office to actually resuming her work later was non-compensable and notes that this principle of non-compensable time applies where the employee has the opportunity to engage in personal activities and a key point “where the employee may freely choose the hour at which she resumes working.”

Fact Pattern Example 2

In another instance the employee leaves in the middle of the day to attend a physician appointment having worked early in the morning from home.

If the employee performed early morning work, went to a doctor’s appointment, and then came into the office, the travel time there is also not compensable under the same theory. Noting that the employee “is traveling of her own volition for her own purposes during her off-duty time.”

The Big Picture

Employers should review the DOL opinion letter and remain flexible as these issues evolve.

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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