At the end of the year, the DOL issued a number of FLSA
opinion letters of interest to employers.
One involves the common situation where an employee works from home part
of the day and works from the office for several hours. Admn Op.
No. FLSA2020-19. In some scenarios,
the situation arises because the employee has a personal appointment (i.e.,
medical or school or childcare) in the morning or early afternoon and the
employer gave permission for the employee to work from home before and/or after
the personal appointment. The employee
performs no work while commuting between locations and sets her own schedule. The
employer inquired whether it was required to compensate the employee for his or
her commuting time to or from the office on those days. “[W]hen 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.”
It is well known that an employer need not compensate an
employee for time spent commuting to and from work before and after his or her workday.
An employer also need not pay an employee for time spent on personal
pursuits. The question becomes whether
the activity is primarily for the benefit of the employer or the employee. However, it is also known that employees are
supposed to be paid at least the minimum wage for their workday.
In general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities is considered compensable, a principle known as the continuous workday doctrine. An employee is generally not considered to be on duty, and the continuous workday doctrine does not apply, until she has performed her first principal work activity of the day – that is, her first task that is integral and indispensable to the duties that she was hired to perform. Unlike ordinary commuting time, travel that is part of an employee’s principal activity, such as travel between different worksites between the start and the end of the workday, is considered to be part of the day’s work and is compensable.
The DOL found that the employee’s travel time in the
hypothetical scenarios was not compensable because the employee was either off
duty or engaged in normal commuting.
Even though, for instance, the employee left work early to attend a
school conference and re-commenced work from home after the school conference,
the employee spent the time during her commute and attending the conference for
personal reasons. “Though the off-duty
regulation speaks of an employee who has been ‘definitely told in advance that
. . . [she] will not have to commence work until a definitely specified hour,’
it applies with equal force here where the employee may freely choose the hour
at which she resumes working.”
Similarly, when an employee works from home prior to a
personal appointment and then takes a break to visit her physician before
driving to work, she has been off duty for the time that she spent driving and
visiting her physician. “Her time
remains noncompensable until she reaches the office and resumes working.”
The DOL also concluded that travel time between home and
office is not compensable under either the worksite to worksite doctrine or
under the continuous workday doctrine.
While employees must be compensated for the time spent commuting
worksite-to-worksite, commuting from home to worksite and visa versa is not the
same activity, regardless of when it occurs because the employer is not
requiring the employee to travel to or from home as part of her job. Rather, she is travelling for her own purposes
during off-duty time.
Off duty time is also not compensable under the continuous
workday doctrine whether it occurs in the break room, off site or commuting
while conducting personal errands. The
employee was also free to determine her own stop and starting times and was not
required to commence work at a particular time during that day. If the rule were otherwise, the employer
could conceivably be required to pay for time that the employee spent napping
for more than an hour, etc.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
