Responding to the ubiquity of remote work amid the pandemic, on Dec. 31, 2020, the U.S. Department of Labor’s Wage and Hour Division (FLSA2020-19) issued an opinion letter regarding the compensability of travel time when employees divide their workday between their home and their employer’s place of business.
The opinion letter states that workers who choose to work from home before or after working in an office on any given day need not be compensated for the time traveling between the two, so long as the employee has the ability to attend to personal tasks during the travel window. This opinion letter answers employers’ questions regarding such split-day arrangements, given that worksite-to-worksite travel is generally compensable and in-office down time between principal tasks is also generally compensable under the continuous workday doctrine.
In two hypotheticals, the letter illustrates that an employee who chooses to “telework” for part of the day to facilitate attendance to personal tasks, such as a doctor’s appointment or a school conference, the intermittent time between the telework and the commencement of work at the office (or vice versa) is not compensable because it is used “effectively for her own purposes.” Thus, any time an employee spends attending to personal tasks before or after attending to her principal work duties at home or in the office, along with the time spent traveling to and from the office, is not compensable, as the DOL regards such time as either off-duty and/or engaged in normal, noncompensable commuting.
Distinguishing the intermittent travel time from otherwise compensable time, the letter notes that such travel time is not worksite-to-worksite travel because it is not part of the employee’s principal work activities. Under these circumstances, the employer is not requiring the employee to split his or her day and the employee is traveling “of her own volition for her own purposes during her off-duty time.” Furthermore, the travel time is not compensable under the continuous workday doctrine because the employee is “completely relieved from duty such that she can use time effectively for her own purposes” regardless of whether the employee elects to use part of that time to travel to or from the office.
Given this new guidance and its reliance on employees’ freedom during intermittent travel periods, employers who permit such work arrangements should avoid regulating the employee’s activities during the time between the remote and in-office work. Likewise, employers should not require such a split day, and should give deference (to the extent practicable) to the employee regarding specific start and stop times.
For answers to questions or additional guidance on the compensability of time in a remote working environment, employers can contact the authors or their McGuireWoods labor and employment contact.