Last week, the federal Department of Labor Wage and Hour Administrator issued two opinion letters concerning the compensability of time spent travelling from home to work or one’s first client assignment. Ohio law generally follows the FLSA and employers can rely on opinion letters for a good faith defense, although these letters are not binding on courts. The DOL explains that time spent commuting from home to work generally benefits the employee more than the employer (because the employee chose where to live) and is generally not compensable because, unless the employee is performing work during the commute, the time is spent mostly for the benefit of the employee (like lunch breaks). “[A]s a general matter, an “ordinary” or “normal” commute represents a third category of time, in addition to off-duty time and bona fide meal breaks, that is not worktime even if it occurs during the continuous workday.” Thus, employers who permit employees to work remotely from home need not compensate employees who (i) only work, or start working, from home in the morning before then commuting to the office or (ii) perform some work from home after travelling home in the evening as a convenience. However, in the next letter, the DOL found that an employee who did not have a regular work office and always commuted to directly to his first client assignment and was required to spend almost an hour before leaving each day scheduling client appointments (sometimes while driving), then the drive time and scheduling time was compensable, but not the time spent receiving pages with such assignments.
In the first letter, FLSA2026-9,
the Administrator addressed an employer
which generally required employees to spend the entire day working from home or
working in the office to avoid having to pay for mid-day commuting time even
though (i) some employees preferred to work from home during rush hour in order
to reduce their commuting time, (ii) some employees needed to leave early
because of bus schedules, but were otherwise willing to work more hours and
overtime and (iii) some employees wanted to work half days from home and half
days in the office. In none of these scenarios
were the employees performing any work during their travel to or from the
office (which would, of course, be compensable). Because scheduling the commute was for the
convenience of the employee and benefitted the employee (who chose where to
live) more than the employer, the DOL explained that the time was no more
compensable than a lunch or other rest break.
Under the Portal Act, “walking,
riding, or traveling to and from the actual place of performance of the
principal activity or activities which [an] employee is employed to perform”
are not compensable activities. 29 U.S.C. § 254(a)(1). However, both before and
after the Portal Act, WHD and courts have long confirmed that “[n]ormal travel
from home to work is not worktime.” 29 C.F.R. § 785.35; . . . even in its pre-Portal Act decisions, the
Court never held that time an employee spent traveling from his or her home to
an employer’s worksite was generally compensable. This is because normal
commuting travel between home and work is a “normal incident of employment”
that may take more or less time depending on where an employee lives—i.e., it
predominantly benefits employees by allowing them to live where they
choose. . . . Ordinary commuter travel
is excludable whether an employee “works at a fixed location or at different
job sites.” 29 C.F.R. § 785.35.
. . .
. . . though ordinary commuting is not
compensable work—as explained above— travel from home to work can constitute
work in some instances, such as “if an employee who has gone home after
completing his day’s work is subsequently called out at night to travel a
substantial distance to perform an emergency job for one of his employer’s
customers.” 29 C.F.R. § 785.36; see also id. § 790.7(c). Similarly, “home to
work [travel] on [a] special one-day assignment in another city” is compensable
worktime, though an employer may deduct the time that an employee would have
otherwise spent commuting to his or her “regular work site.” Id. § 785.37; . . . Finally, if an employee performs any work
during home-to-work travel, it would “of course be counted as hours worked.” 29
C.F.R. § 785.41; see also id. § 790.7(d). These types of travel are not
considered “ordinary” commuting because they are not normal incidents of employment
and primarily benefit the employer as opposed to the employee.
The Continuous Workday Doctrine. The “continuous workday” doctrine or rule
establishes that “once the workday starts, all activity is ordinarily
compensable until the workday ends,” . . . For example, “a messenger who works
a crossword puzzle while awaiting assignments” or “a factory worker who talks
to his fellow employees while waiting for machinery to be repaired” is
considered to be working, even if the employee is “allowed to leave the
premises or the job site during such periods of inactivity.” 29 C.F.R. §
785.15. Similarly, a waiter who must wait during his shift for customers to
come in is working. . . .
The continuous workday doctrine
reflects a general presumption that an employee’s time within the workday
predominantly benefits the employer—and that time outside the workday mainly
benefits the employee. It thus historically benefits both employers and
employees. Generally, an employee’s time during the workday is compensable,
even though it may provide employees with some benefits, whereas outside the
continuous workday time is generally not compensable even though it may provide
employers with some benefits. . . .
Like many general principles, there
are recognized exceptions to the continuous workday doctrine—both for time
spent at an employer’s worksite that clearly benefits the employee more than
the employer and, concomitantly, time spent away from an employer’s worksite
(e.g., at a worker’s home) that benefits the employer more than the employee.
The former is, therefore, excludable from compensable worktime and the latter
properly counted as hours worked. Specifically, the Department has recognized
off-duty time, defined as “periods during which an employee is completely
relieved from duty and which are long enough to enable [an employee] to use the
time effectively for his own purposes,” and bona fide meal periods as time
during the workday that is nonetheless not worktime and thus need not be
compensated. 29 C.F.R. §§ 785.16, 785.19. And, of course, any hours worked
before or after an employee’s regular working hours constitute worktime, even
if the work is performed away from the worksite, including at home. 29 C.F.R. §
785.12.
. . . , as a general matter, an “ordinary” or
“normal” commute represents a third category of time, in addition to off-duty
time and bona fide meal breaks, that is not worktime even if it occurs during
the continuous workday. . . .
.. .
. . . ,” otherwise-ordinary travel between
home and work does not become worktime simply because it occurs during the
workday—that is, at some point in between an employee’s first and last
“principal activities.” . . .
Rather, when an employee engages in
an “ordinary” commute, the commute is simply a “normal incident of employment,”
and thus is not “work.” 29 C.F.R. § 785.35.22.
We therefore confirm here that if
home-to-work travel is “ordinary,” it need not be paid or recorded as worktime,
and we clarify that ordinary home-to-work travel that occurs during the workday
constitutes a third category of time during the workday, in addition to bona
fide meal breaks and off-duty time, that is not considered “hours worked” under
the FLSA.
. . . .
. . . the timing of such commuter travel is
genuinely voluntary, as employees might have any number of reasons to adjust
the timing of their daily commutes. For example, an employee might need to
remain at home for part of his or her workday due to a sick child or a visit
from a maintenance worker during a scheduled appointment window. Because
optional mid-day commuter travel allows employees to accommodate such personal
needs, it can benefit employees as much or more than commuter travel which
occurs at the beginning or end of the workday. Accordingly, voluntary commuter
travel which occurs in the middle of the workday remains an ordinary commute
and does not qualify as work.
In the second letter, FLSA2026-10,
the employee did not have a regular office, but rather, performed maintenance
and repair work on hospital MRI machines throughout the region where he
lived. He would receive pages each
morning with an assignment and then would spend roughly 45 minutes before his paid
shift began at 8 am calling those hospitals and scheduling appointments. Sometimes, he would have to leave well before
his 8 a.m. shift and schedule appointments on the way. Thus, he had no “normal” commute because each
day he was sent to a different location.
The DOL found that the pages (which took approximately 15 seconds
each to receive) did not constitute work time. It also did not matter that his employer
provided him with a vehicle in which to travel.
However, the time he spent
scheduling appointments, consulting with engineers, and driving to appointments
did constitute compensable work time. “The
“continuous workday” doctrine establishes that “once the workday starts, all
activity is ordinarily compensable until the workday ends,” . . .
Compensable Travel Time. Unlike
ordinary commuting time or travel time excepted by the Portal Act or ECFA, any
travel that is part of an employee’s principal activity, such as travel between
different worksites during the workday, is considered part of the day’s work
and therefore compensable hours worked. . . . Additionally, because an employee must be paid
for all hours worked, courts and the Division have long recognized that time
spent during an otherwise non-compensable ordinary home-to-work or work-to-home
commute becomes compensable hours worked when the employee is working during
the commute time. . . . Thus, if, during a commute, an employee
performs activities that are integral and indispensable to the principal
activities he or she is employed to perform, or said principal activities
themselves, and not incidental to the use of an employer-provided vehicle for
commuting, then the time spent on those activities constitutes compensable
hours worked even though the activities occur during an otherwise
non-compensable commute.
. . . .
Receiving assignments remotely is a
minor consequence of driving an employer-provided vehicle to and from home.
Otherwise, an employee would have to report to a central work location to
receive assignments, which would frustrate the convenience of a program
allowing employees who work at multiple job sites per day to drive an
employer-provided vehicle directly to and from home. . . . .
On the other hand, time spent
calling clients to schedule and arrange the details of appointments, including
scheduling other field service engineers, constitutes compensable hours worked.
These activities are required by, and primarily benefit, your employer;
therefore, they constitute work. Furthermore, they are a critical element of
your primary responsibilities, and consequently are not incidental to your
commute or otherwise preliminary but rather integral and indispensable to your principal
activity of installing and servicing medical equipment at your employer’s
clients’ locations. Unlike simply receiving pages, communicating with clients
to schedule appointments is a necessary step to performing the services
requested by them. . . . The same is true of calling other field
service engineers to ensure that clients’ service requests are fulfilled.
Similarly, unlike receiving pages, which is specifically necessary for you to
receive assignments from home, one must call clients to schedule appointments
in any event if clients’ requests are to be fulfilled. This activity is thus
intrinsic to the services you perform for clients, and you cannot dispense with
such work. . . . .
. . . .
Under the facts described above, we
conclude that this travel is not an ordinary commute, but rather compensable
travel. We reach this conclusion based on the application of longstanding FLSA
principles to the totality of the circumstances. Here, not only are both the
time and manner of the travel based primarily on the employer’s needs rather
than the employee’s choice, but your employer is also requiring you to engage
in substantial work both immediately before the travel, when you spend most of
an hour engaged in phone calls, and immediately after your travel, when you
work at your first worksite of the day. This bears few, if any, of the
hallmarks of an ordinary commute between an employee’s home and worksite.
Indeed, under the circumstances described, you lack virtually any of the types
of freedom and flexibility that typically accompany an ordinary home-to-work
commute time, such as the choice of the mode of transportation, the choice of departure
time, and the ability to spend time on personal tasks before or during breaks
in the travel. For these reasons, we conclude that your travel is not, in fact,
an “ordinary” commute that is non compensable regardless of when it occurs. To
be clear, the Division would consider this sort of travel to work to be
explicitly excluded from compensability under the Portal Act if it were to
occur before or after the workday. . . .
. . .
. . . . you are sometimes required (and
accordingly must regularly plan) to spend the substantial majority of the hour
before your travel making calls to clients, and to other engineers as
necessary, to fulfill clients’ service requests, with any personal activities
you undertake limited to those you can perform simultaneously with (or in very
short breaks between) your work duties, before you immediately travel to your
first worksite at the time and in the manner directed by your employer. . . .
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.
