Poyner Spruill LLP

With the tremendous increase in telework, employers have had to face a number of new issues, including properly compensating their employees.  Fortunately, the United States Department of Labor Wage and Hour Division (“DOL”) is authorized to issue opinion letters to provide guidance to employers in applying such laws as the Family Medical Leave Act and the Fair Labor Standards Act on a given set of facts.

Recently, an employer requested an opinion letter from the DOL in regard to whether it is required to pay its employees, who telework and work in the office, for a portion of their travel time?  In response, the DOL issued an opinion letter which interpreted two examples provided by the employer.  The two examples outlined in the letter are the following:

In the first example, an employee has a parent-teacher conference at her child’s school from 1:30 p.m. to 2:15 p.m.  She has received permission to attend the conference and then work from home rather than returning to the office.  She leaves her office at 1:00 p.m., drives 30 minutes to the school; and meets with the teacher for 45 minutes; the travel time from the school to her home is 30 minutes.

The employer wants to know if the time spent driving from the office to the school and the school to home is compensable?

In the second example, an employee has a doctor’s appointment from 8:30  to 9:15 a.m.  The drive from her home to the doctor’s office is 45 minutes; the drive from the doctor’s office to the employer’s office is 15 minutes. The employee has received permission to work from home before driving to her appointment and will work the rest of the day after the appointment at her regular office location.  You posit that the employee works at home from 5:00 to 6:00 a.m., is free to perform personal activities between 6:00 and 8:00 a.m., leaves for her appointment at 8:00 a.m., finishes her appointment at 9:15 a.m., and arrives (and begins working) at her office at 9:30 a.m. At the end of the day, the employee commutes home from her office as usual and performs no work either during the commute or after she arrives home.

The employer wants to know if the time spent driving from the employee’s home to her doctor’s office and then to her office is compensable?

In finding that that the employer did not owe travel time pay to the employee under either example, the DOL, in interpreting the Portal-to-Portal Act, stated:

….we conclude 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.

While opinion letters from the DOL provide helpful guidance and can be possibly used as the grounds for a defense to a claim, it is important to keep in mind that they are interpretations of the specific facts provided by the requesting employer.  In addition, the opinion letters can be modified or rescinded by the DOL or determined to be invalid or of no legal effect by a judicial authority. Instead of solely relying on a DOL opinion letter previously issued to another employer for guidance on a matter, the safer course of action is to consult with employment law counsel, and if necessary, request an opinion from the DOL on your specific facts.