Department of Labor Clarifies Pay for Travel Time in Work-from-Home Era

The U.S. Department of Labor issued an opinion letter addressing whether the Fair Labor Standards Act’s (FLSA) continuous workday doctrine requires employers to pay employees for commute time when they complete part of their workday from home. An opinion letter is an official, written opinion by the department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person or entity that requested the letter.

The FLSA defines a continuous workday as: “In general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” In these days of working part or all of a workday at home, the question that came to the Department of Labor poses examples where an employee gets permission to telework before coming into work, attend a doctor’s appointment, and then complete the workday at the employer’s site. Or the employee comes into work in the morning, leaves at noon to attend a parent-teacher conference, then continues to complete the workday from home. The question: is the employer obliged to pay for this commute time under either the continuous workday doctrine or as travel between different work sites between the start and end of the workday?

The WHD’s opinion is that the travel time in neither circumstance is compensable. Detail on their judgment explains:

“The employee’s travel time once she leaves the office is non-compensable off-duty time . . . Her time is hers to do with as she pleases – she is no longer performing compensable work for the employer. This remains the case whether she is traveling to a personal appointment, traveling from a personal appointment, having personal meetings, or performing other personal activities.”

“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 workday. But that is not what this travel is. The employer is not requiring the employee to travel as part of her work; rather, she is traveling of her own volition for her own personal purposes during her (pre-arranged) off-duty time.”