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.