On December 31, 2020, the United States Department of Labor (DOL) issued an opinion letter addressing the question of whether an employee who chooses to telework for part of the workday and work in the office for the remainder must be compensated for their travel time between home and office. The DOL reiterated that travel time between the home and office during the workday is not compensable if the employee is free while traveling to do as they please and has sufficient time to perform personal tasks between locations.
Commuting From Home is Generally Not Compensable Time
As a general principle, the Fair Labor Standards Act (FLSA) requires that covered employees be compensated for all hours worked, defined as the time that an employee’s actions are undertaken primarily for the benefit of their employer. Conversely, if an employee is off duty, even during the middle of the workday, and otherwise relieved from their duties with enough free time to pursue their own purposes, this time does not need to be compensated.
Similarly, an employee’s regular commute to the office in the morning and back home after their shift is not compensable work time, although travel during the workday, for example, between worksites or to off-site meetings, is generally compensable. This is known as the “continuous workday doctrine,” which holds that an employee must be compensated for the time between their first and last principal activities each day.
In Certain Circumstances, Mid-Day Commuting May Be Compensable “Working Time”
The specific question addressed by the DOL was whether an employee who performs work at home, then commutes to the office with time in between to do whatever they please, for example, attend a doctor’s appointment or run an errand, needed to be compensated for their travel time. The DOL opined that this time was not compensable because the employee was “either off duty or engaged in normal commuting” and was free to otherwise do as they pleased during their travel.
Unanswered Questions Remain – What if the Employee is Forced to Commute?
The question not answered by the DOL, however, is whether this commute time would be compensable if the employee were not otherwise allowed to use the time between working at home and working in the office for their own purposes. Under the continuous workday doctrine, it is possible that this would turn the commute between home and work during the middle of the day into compensable travel between job sites. This conclusion, however, is unclear, and the answer may lie in whether it was the employee or the company who elected to split the workday between home and the office.
For example, in Ahle v. Veracity Research Co., a 2010 decision out of the District of Minnesota, the Court held that the fact that an employee performed work at their home in the morning before traveling to the jobsite did not render the initial commute to be compensable time when there was nothing mandating that the employee perform the work in the morning immediately before their travel (in other words, the employee could elect to perform the required tasks at any point between the end of the previous work day to the beginning of the next work day).
However, if an employer requires an employee to start their day from their home office, for example, mandating the employee works from home from 9 to noon, and then to immediately head to the office for the remainder of the day, this may change the analysis and cause the mid-day commute to become compensable “travel from job site to job site during the workday,” assuming that the employee is not free to perform personal tasks while traveling.
As employees continue to work from home on an increased basis, employers are well advised to make sure that employees are compensated for any time spent traveling during the workday, if required by the company and during which the employee is not otherwise free to pursue their own devices. However, if employees are given flexibility regarding their workday schedule and can split their time between home and office, travel time between locations may not be compensable time.