Posternak Blankstein & Lund LLP is now Arent Fox. Read the press release

DOL Issues Opinion Letter on Compensability of Travel Time for Teleworkers

On December 31, 2020, the Administrator of the Department of Labor’s Wage and Hour Division issued an opinion letter addressing whether certain travel time that occurs on a partial telework day is compensable under the FLSA. Opinion Letter FLSA2020-19 (December 31, 2020). (An opinion letter is an official Wage and Hour Division written opinion about how a law that the Division enforces applies in specific circumstances that the person or entity who requested the letter presented.)

A link to the opinion letter is here

The letter discusses two different scenarios. Both involve an employee with a one-hour commute to and from her office who normally works Monday through Friday, from 8:00 a.m. to 4:30 p.m. The employee does not perform any work during her commutes.

In the first scenario, the employee has a parent-teacher conference at her child's school, from 1:30 p.m. to 2:15 p.m. She has received permission to attend the conference and then work from home rather than return to the office. She leaves her office at 1:00 p.m., drives 30 minutes to the school, and meets with the teacher for 45 minutes; the travel time from the school to her home is 30 minutes. The requestor asked whether the time spent driving from the office to the school and from the school to home would be compensable depending on whether the employee:

  • Immediately resumes working when she gets home;
  • Devotes an hour to personal activities upon arriving home and then resumes working;
  • Devotes two hours to personal activities upon arriving home and then resumes working; or
  • Devotes at least an hour to personal activities before driving home, devotes at least another hour to personal activities upon arriving home, and then resumes working.

In the second scenario, the employee has a doctor's appointment from 8:30 to 9:15 a.m. The drive from her home to the doctor's office is 45 minutes; the drive from the doctor's office to the employer's office is 15 minutes. The employee has received permission to work from home before driving to her appointment and will work the rest of the day after the appointment at her regular office location. The requestor posited that the employee works at home from 5:00 to 6:00 a.m., is free to perform personal activities between 6:00 and 8:00 a.m., leaves for her appointment at 8:00 a.m., finishes her appointment at 9:15 a.m., and arrives (and begins working) at her office at 9:30 a.m. At the end of the day, the employee commutes home from her office as usual and performs no work either during the commute or after she arrives at home. The requestor asked two related questions:

  • Is the employee's one hour of travel time from home to the appointment and the appointment to the office compensable?
  • Is the employee's commute time from her office to home, where she began working that day, compensable?

The Administrator observed that the Fair Labor Standards Act generally requires that a non-exempt employee be paid at least the federal minimum wage for every hour that she works and be paid at one and one-half times her regular rate of pay for each hour worked in beyond 40 in a single workweek. Whether an employee is "working" typically can be answered by determining whether her action is primarily for her employer’s benefit. An employee does not need to be paid for hours that she is off duty; that is, periods when she is completely relieved from duties and that are long enough for her to effectively use the time for her own purposes. Additionally, time that an employee spends in normal commuting or ordinary travel from home to work and vice versa — that is, travel from home to work before the regular workday and travel from work to home at the end of the workday — is specifically excluded from compensable hours.

The Administrator also noted that "[i]n general, the period between the commencement and completion on the same workday of an employee's principal activity or activities" is considered compensable, a principle known as the “continuous workday doctrine.” But an employee is generally not considered to be on duty, and the continuous workday doctrine does not apply until she has performed her first principal work activity of the day — that is, her first task that is integral and indispensable to the duties that she was hired to perform. Moreover, unlike ordinary commuting time, travel that is part of an employee's principal activity, such as travel between different worksites between the start and the end of the workday, is considered part of the day's work and is compensable.

Applying those principles to the facts provided, the Administrator concluded that none of the travel time that the requestor described is compensable. Rather, according to the Administrator, “when an employee (a) chooses to perform some work before traveling to the office or (b) chooses to perform work at home after leaving the office, and in either case has sufficient time in between her telework and office work periods to use effectively for her own purposes, the time she spends traveling between home and office is not compensable.”

This opinion letter highlights the challenges that employers can confront in determining how much time a non-exempt employee who telecommutes is working during the day when there are interruptions for personal pursuits. It is important for employers to have reliable time-keeping systems that allow non-exempt employees to easily “punch in” and “punch out” to accurately record their working time. It is also important for employers to educate non-exempt employees, through FAQs or other guidance, about the differences between working and non-working time.


Continue Reading