On December 31, 2020, the U.S. Department of Labor (DOL) issued an opinion letter about whether an employer must pay for travel time for an employee who chooses to work from a home office part of the day and from the employer’s office for part of the day.
Under the continuous workday rule, the time period from the beginning of an employee’s work duties to the end of those activities on the same workday is compensable work time. The continuous workday rule applies once the employee begins the first task that is integral and indispensable to the tasks she was hired to perform. Travel that is part of an employee’s principal activity, such as travel between worksites, is generally considered to be part of the day’s work and is compensable.
The DOL opinion letter highlighted two categories of travel time that are not compensable under the continuous workday rule.
First, travel is not compensable if the employee is off duty. For example, an employee starts work at the employer’s office, travels to a personal appointment (parent-teacher conference), and then completes the workday at home. In this case, the DOL opinion letter found that the employer need not pay for the time the employee spent traveling to and from the conference. The employee is free to use the time for her own purposes (the parent-teacher conference) and is therefore off duty even during the commuting time. The employee is not paid for this travel because she has been completely relieved of work duties and is traveling for her own purposes on her own time.
Second, travel is not compensable if the employee is engaged in normal commuting. For example, an employee works at home from 6-8 a.m., goes to a doctor’s appointment from 9-10 a.m., drives to the employer’s office at 11, and drives home at 6 p.m. in the evening. As in the first example, the employee is off duty when she travels to and from the doctor’s appointment and when she attends the appointment. Although she did start work at home before her travel to the doctor, she was completely freed from work duties once she started traveling to the doctor and she could use the entire time traveling for her own purposes. Such off-duty travel is not compensable under the continuous workday rule. When she traveled from the employer’s office to her home at the end of the workday, it was a normal commute time that need not be compensated.
The DOL concluded that when an employee arranges for her workday to be divided into a block worked from home and a block worked from the employer’s office, separated by a block reserved for the employee for her own purposes, the reserved time is not compensable, even if the employee uses some of that time to travel between her home and the employer’s office.
Note:
Under this opinion letter, employees who telecommute from their home office for part of the day and travel to the employer’s offices on the same day could be engaged in the normal home to work commute. Normal home to work travel is not compensable work time under the FLSA.