“It is good to have an end to journey toward; but it is the journey that matters, in the end.”

 --Ursula K. Le Guin

The Department of Labor (“DOL”) Wage and Hour Division (“WHD”) publishes another topical letter responding to the COVID-19 new normal of flexible working arrangements. DOL published Opinion Letter FLSA 2020-19 on December 31, 2020 discussing the compensability of different types of travel time. And the letter was no New Year’s Eve surprise. During a time when much of the country has decided to suspend in person working, an employer wrote to WHD wondering if employees who choose to work from home, and then work in person on the same day have compensable travel time if they conduct personal activities between working from home and in person. In short, WHD decided that this is not compensable travel time. 

The question at hand goes to the question of what really are “hours worked”. This letter specifically discusses when travel time constitutes hours worked and becomes compensable. In some cases, the employer is responsible for the time an employee spends traveling to and from work, such as worksite-to-worksite travel. 29 C.F.R. § 785.38. The idea is that the employee is spending their time for the benefit of the employer and therefore they deserve to be compensated for that time. This is sometimes called the portal rule, where once an employer reports to work, the workday starts, and all travel thereafter is for the benefit of the employer unless it is overnight, outside of regular working hours, on a common carrier, and no productive work is performed. This contrasts with another basic principle that time an employee spends in normal commuting, to and from work, is not compensable time. 29 C.F.R. § 785.16. 

Here, the employer gave two scenarios for consideration. First, the employer asked about an employee who traveled to work in the morning but left for a parent teacher conference at their child’s school, then returned home to work the rest of the day. Then the employer asked about an employee who works from home at the beginning of the day, commutes to a doctor’s appointment, then commutes to work before finishing for the day. At first glance this does not seem like an issue because it is normal commuting time. However, this crosses into a principle called the “continuous workday” which states that the period of time between the commencement and completion of the workday is generally compensable time. 29 C.F.R. § 790.6(b). In both of the above situations the employee is traveling in the middle of their workday and performs work before and after that travel time. The employer would argue that despite work performed both before and after the travel time, the employee is off duty and thus the time is not compensable. And this is the exact argument the DOL uses to justify its decision here. 

DOL considered this time as “off-duty” or regular commuting time because the employee is leaving work and is able to whatever she likes with her time. DOL writes that this would be the case whether she was traveling to an appointment, having a personal meeting or any other personal activities. The regulation provides for an exception where an employee is told in advance that she is off duty until a specific hour.  Here, DOL applies that same exception where the employer allows the employee to freely choose at what hour she resumes working. 29 C.F.R. § 785.16. Either way, the employee is free to use her time for her own purposes which means that the travel time is not compensable despite it occurring in the middle of the middle of the workday. DOL was careful to point out that this opinion is limited to situations where the employer did not require the employee to work immediately before commuting to work or after commuting from work as there are several decisions holding that this could be compensable time as it either started or extended the workday beyond the commuting.  

In addition, the time spent commuting to and from the worksite in these scenarios is not compensable because it is not worksite to worksite travel. In order for travel time to be counted as hours worked it must be part of an employee’s principal activity. 29 C.F.R. § 785.38. Here the employer is not requiring the employee to travel as part of her work, instead the employee is choosing to travel to and from work as part of her quasi work from home schedule. 

DOL eventually concluded that when an employee performs work before traveling to the office, or after leaving the office, and has sufficient time to use for her own purposes, then the time spent traveling between home and the office is not compensable. This is absolutely the right decision because it allows the employee and employer to enter into an agreement that is for the benefit of both parties. The alternative would be to require employees to leave early or start late thereby sacrificing hours worked and productivity just to avoid running afoul of the continuous workday rule. The example where the employee left to go to a mid-day parent teacher conference would require the parent to finish work midday, and the employee would not be able to continue to work from home after the meeting. In addition, simply allowing the employer to take personal time during the day could cause employers to run afoul of the FLSA. This would be an inefficient result with hard implications for work from home situations and what may be the future in many industries.  

To read the opinion letter yourself, visit DOL’s website here: https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/2020_12_31_19_FLSA.pdf