At the eleventh hour of 2020, the Department of Labor issued a new opinion letter addressing whether certain travel time occurring on a partial telework day is compensable under the FLSA. Specifically, whether a nonexempt employee who chooses to telework for part of the day and to also work at the office for another part of the day must be compensated for travel time between the employee’s home and the office, under two different proposed scenarios.

In both scenarios, the employee takes time to engage in personal activities between her telework time and her in-office time. Her regular work schedule is Monday through Friday, 8:00 AM to 4:30 PM, and she has a 1-hour commute between work and home.

Scenario 1

Employee has an in-person parent-teacher conference from 1:30 PM to 2:15 PM and receives permission to work from home after the conference rather than returning to the office. She works at the office from 8:00 AM to 1:00 PM, then drives 30 minutes to her child’s school, meets with the teacher as scheduled, and drives 30 minutes back to her home. The employer asked whether the employee should be paid for her time spent driving from the office to school and from school to her home, depending on whether the employee immediately resumed working when she got home or whether she devoted varying amounts of time to personal activities either before or after she drove to her house and only later resumed working.

Scenario 2

Employee has a doctor’s appointment from 8:30 AM to 9:15 AM and receives permission to work from home before her appointment and come into the office afterwards. She works from home from 5:00 AM to 6:00 AM, spends nearly 2 hours of personal time getting herself and her family ready for the day, then drives 45 minutes from her home to the doctor, finishes her appointment, and drives the remaining 15 minutes to her office, arriving to start work at 9:30 AM and working in the office for the remainder of her regular workday. The employer asked whether the employee must be paid for either of her combined 1-hour travel time from home to the doctor and the doctor to the office or her commuting time at the end of the workday from the office back to her house (where she first started working that day), or both.

FLSA Framework

Under the FLSA, an employer is generally not required to pay employees for the time they spend commuting to and from work at the beginning and end of each workday. Nor does an employee need to be paid for hours that she is off duty and using time for her own personal purposes. Otherwise, the time “between the commencement and completion on the same workday of an employee’s principal activities” is generally considered compensable time; this is known as the continuous workday doctrine. But there are exceptions.

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. Unlike ordinary commuting time at the beginning and end of each workday, travel that is part of an employee’s principal work activity—such as travel between different worksites in the middle of the workday—is considered compensable time.

DOL’s Conclusion: As Described, None of Employee’s Travel Time is Compensable

For a variety of reasons, the DOL determined that none of the employee’s travel time—as described by the employer in both scenarios—was considered to be work time and required to be paid by the employer. We’ll deal with each reason in turn:

The employee’s travel time is not compensable because she is off duty. In Scenario 1, the employee’s travel time once she leaves the office is off duty time. Between her leaving the office at 1:00 PM and her resuming work at her home at 2:45 PM (at the earliest, depending on what other personal activities she engaged in), the employee’s time is hers to do with as she pleases, and she is not performing any compensable work for her employer. This is is true regardless of whether the employer had told her she needed to resume working (from home) at a certain time after her parent-teacher conference or she was permitted to freely choose the time when she resumed working (as occurred in Scenario 1).

In Scenario 2, the employee’s travel time in the morning is likewise off duty time. The hour that she spent working from home is compensable work, just as it would be if she had performed it at the office. But at 6:00 AM she was off duty and had a big chunk of time to use for her own purposes, whatever they may have been, and her time remains non-compensable until she gets to the office and starts working at 9:30 AM.

The employee’s travel time is not compensable because she is engaged in normal commuting. In Scenario 2, the employee’s travel from the office to her home at the end of the workday is ordinary work-to-home commuting time and is not compensable. Such time does not become compensable simply because she elected to do some work from home earlier that day.

The employee’s travel time is not compensable as worksite-to-worksite travel. In neither Scenario does the DOL consider the employee’s travel between her home, her personal appointment, and the employer’s office to be compensable travel between worksites. Travel time between worksites during the workday must be counted as hours worked only when it is part of an employee’s principal activity. But that is not what this is; the employer is not requiring the employee to travel as part of her work, and she is travelling of her violation for her own personal purposes during off duty time.

The employee’s travel time is not compensable under the continuous workday doctrine. In neither Scenario does the DOL consider travel between the employee’s home, her personal appointment, and the employer’s office to be compensable as a result of the continuous workday doctrine because, as described, such travel time is off duty time. Though the period between an employee’s first and last principal work activities will “in general” be compensable, the regulations explicitly state that when an employee is completely relieved from duty and can use time effectively for her own purposes, such time is not compensable—even if it happens in the middle of the workday. When an employee arranges for her workday to be divided into a block worked at home and a block worked at the office, separated by a block reserved for the employee to use for her own personal purposes, the reserved time is not compensable even if the employee uses some of that time to travel between her home and the office.

…BUT there may be a different result if the employee was potentially required by the employer to perform work before immediately before commuting to the office or to immediately do work after commuting home from a worksite. Because the two Scenarios involved here indicate that the employee is not required by her employer to perform her work at any particular time, any such rule does not seem to apply. As one opinion cited by the DOL concluded: “It simply cannot be the case that an employee is empowered unilaterally to convert her commute into compensable time merely by deciding to perform her daily routine in a particular manner.”

As always, the issue of whether an employer needs to pay for an employee’s travel time is complicated. One scenario this opinion letter did not address is whether an employee’s travel time between home and the office would be compensable if the employer required the employee to split days between telework in the morning and in-office time in the afternoon, or if the employee voluntary chose to do so without any off duty personal time in between. Under those circumstances, such travel time may indeed be compensable. Employers should approach with caution and be sure that all policies and expectations are clearly stated and in compliance with applicable federal and state law.

By Rebecca D. Bullard, rbullard@dsda.com