Paying Employees for Travel Time on A Partial Telework Day? The U.S. Department of Labor Weighs in…

By Courtney Amelung - Shawe Rosenthal LLP

January 26, 2021

In response to the COVID-19 pandemic, employers have implemented flexible work schedules for a litany of reasons including, for example, to limit the number of employees in the office at any given time, to allow employees to obtain medical care for themselves and their family members, and simply to give employees the opportunity to handle the new, daily challenges brought about by this pandemic.  As a result, many employees find themselves splitting their time between working from home and working from the office – sometimes on alternating days, and sometimes in the course of a single day.  This practice, which is by no means new, but has certainly become more prevalent over the past year, raises the question as to whether travel time on a partial telework day is compensable under the Fair Labor Standards Act (“FLSA”).

In a recent opinion letter, FLSA2020-19, the U.S. Department of Labor addressed this very question.  These letters are official, written opinions by the Department’s Wage and Hour Division that respond to fact-specific scenarios posed by employers and employees alike. These letters provide guidance to other employers facing similar circumstances.

Typically, under the Portal to Portal Act (an amendment to the Fair Labor Standards Act), an employee’s compensable time starts once they arrive at the office and start working. Normal commuting time is not compensable; however, any time that the employee spends traveling to/from work locations during the day once they begin working is usually considered compensable time. But not always…

In this particular letter, the DOL considered an employee who chooses to telework part of the day and work at the office for part of the day, while completing personal tasks in between.  The employee normally works Monday through Friday from 8:00 a.m. to 4:30 p.m. and has a one-hour commute to and from the office.  The employee does not perform any work during her commute.  On the partial telework day, the employee leaves the office at 1:00 p.m. and drives 30 minutes to attend a 45-minute personal appointment.  The employee then drives 30 minutes home and continues to work from that location in the evening.

In this scenario, the DOL found that the employee’s travel time was not compensable under the FLSA because the employee is free to use their time for their own purposes from the moment they leave work at 1:00 p.m., until they resume work at home later in the afternoon.  Because the employee is no longer performing compensable work for the employer, and may freely choose the hour at which they begin working, the travel time is non-compensable.

The DOL also considered an employee who has a doctor’s appointment from 8:30 to 9:15 a.m.  The doctor’s office is 45 minutes from the employee’s home, but only 15 minutes from the employee’s regular office location.  The employee works from home before the doctor’s appointment from 5:00 to 6:00 a.m., is free to perform personal activities between 6:00 and 8:00 a.m., leaves for the appointment at 8:00 a.m., finishes the appointment at 9:15 a.m., and arrives and begins working at the office at 9:30 a.m.  At the end of the day, the employee commutes home from the office, and performs no work either during the commute or after arrival at home.

Here, the DOL similarly concluded that the travel time is not compensable.  The hour the employee spends working from 5:00 to 6:00 a.m. is compensable, just as it would be if they had performed the work in the office.  Beginning at 6:00 a.m., however, the employee is off duty and uses a block of time for their own purposes – namely, to travel to and attend a medical appointment.  The employee’s time remains non-compensable until they resume working at the office at 9:30 a.m.  Additionally, the employee’s commute home at the conclusion of the workday is an ordinary work-to-home commute and therefore not compensable.

The key takeaway from this letter is that when an employee is not being required to travel as part of their work, but is instead traveling as they please during off-duty time, the travel time is non compensable – even if the employee uses some of that time to travel between home and the office and later resumes working from either location.  So long as the employee is completely relieved of their duties such that they can use their time for their own purposes, the travel time between work and home is not compensable.

Given the recent change in administration, we can certainly expect new opinion letters from the U.S. Department of Labor as the new year progresses.  As always, we will continue to provide updates regarding any additional guidance that is issued.