DOL Clarifies that Employees Need Not Be Paid for Time Spent Commuting To and From Work Even if Employee Worked from Home Part of the Same Day

 

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. 

Sixth Circuit: ADA Does Not Require Employer to Accommodate Employee’s Commute to Work During Lighter Traffic by Modifying Shift or Lunch Break

This morning, the federal Sixth Circuit Court of Appeals affirmed summary judgment in favor of an employer on an ADA failure-to-accommodate claim. Regan v. Faurecia Automotive Seating, Inc., No. 11-1356 (6th Cir. 5-10-11). The employee objected to a change in her shift that would require her to drive in heavier traffic during her commute to and from work. The Court concluded that the ADA only requires an employer to eliminate barriers in the workplace and not external barriers. It was the employee’s choice to move 79 miles away from her employer and commute an extreme distance to work every day. Moreover, it found that the employer’s refusal to permit her to work through lunch – like male employees – so that she could leave an hour earlier was merely inconvenient and not material enough to constitute an actionable adverse job action.

In that case, the plaintiff suffered from narcolepsy and objected when her shift starting time was adjusted from 6 a.m. to 7 a.m. because she was driving 79 miles from home, this would put her in heavier traffic and she had trouble staying awake while driving in heavy traffic. The employer pushed back the shift because the materials needed for her to perform work did not arrive until after 6 a.m. Her supervisor told her to obtain FMLA leave or to resign. HR gave her FMLA forms to complete and said that it would discuss possible accommodations with her after she submitted the completed paperwork. The plaintiff obtained a note from her physician that he recommended a minimal commute and working hours of 6 a.m. to 3 p.m. The plaintiff never submitted the FMLA forms, but claims that she submitted the doctor’s note. When her shift starting time was changed, she resigned and filed suit.

The district court found that her narcolepsy did not constitute a disability and that the employer was not required to reasonably accommodate her commute. As stated by another court: “While an employer is required to provide reasonable accommodations that eliminate barriers in the work environment, an employer is not required to eliminate those barriers which exist outside the work environment.” The Sixth Circuit agreed:

[T]he Americans with Disabilities Act does not require [the employer] to accommodate [the employee’s] request for a commute during more convenient hours. Under the facts present here, her proposal of a modified work schedule for purposes of commuting during hours with allegedly lighter traffic is not a reasonable accommodation.

The plaintiff also alleged sex discrimination because the employer had permitted male employees to work through lunch in order to leave early, but refused her permission to do the same. The Court found the denial of this request was a mere inconvenience that did not rise to the level of a materially adverse job action. It also rejected her allegation that she was constructively discharged.

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.