Tuesday, January 12, 2021

DOL Wage and Hour Opinion Letter on Travel Time for Telworkers

The federal government agencies have been unveiling guidance and regs faster than I can even blog about them. I'll try to hit some of the highlights in the next week or so though. Of course, all of this comes with the giant caveat that we have a new administration coming in, and it will likely hold different views on at least some of these issues. 

On the last day of 2020, DOL Wage and Hour issued opinion letter FLSA2020-19. As you probably already know, commute time is generally not compensable. The opinion letter addresses what, frankly, I'd call some no-brainers. If an employee is teleworking and has to drive an hour to a parent-teacher conference and then comes into the office - compensable? Of course not! Why would an employer be responsible for paying its employees to drive to their kid's school?

Employers, however, should be aware of the "worksite-to-worksite" doctrine: 

Travel time must be counted as hours worked when it is part of an employee's principal activity, such as travel from worksite to worksite during the work day.

But, if the employee is not required to travel from home to office (let alone to a parent-teacher conference) as part of their job, then the time is probably not compensable. 

Employers should also note the "continuous workday" doctrine:

[T]he period between an employee's first and last principal activities will "in general" be compensable.

But, again, if an employee is not required to travel between home and office for work, then the employee is effectively relieved from duty during that travel time. From the opinion letter:
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 purposes, the reserved time is not compensable, even if the employee uses some of that time to travel between the home and office.

The letter does not specifically address a situation where the employee uses all of that time to commute. I do not believe the result would be different though. If an employee arranges to spend some time at home and then some time in the office, that time will likely not be compensable. 

What would make the result different? If the employee were required to do some work from home immediately before or after being required to come into the workplace. In that situation, the employer is effectively controlling the entire bloc of the employee's time for the employer's benefit - probably compensable. 

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