The U.S. Department of Labor has issued new guidance that employers are not required to pay travel time to employees who choose to work remotely for part of the day.
The department’s Wage and Hour Division issued an opinion Dec. 31 on whether an employee who works part of the day from home and part of the day in the office has to be compensated for travel time.
An employer asked whether an employee who chooses to split time between telework and the office while completing personal tasks in between must be compensated for certain travel time.
The employer presented two examples, both involving an employee who commutes one hour to the workplace, works Monday through Friday from 8 am to 4:30 pm, and does no work during the commute.
In the first case, the employee has a parent-teacher conference at school from 1:30 to 2:15 pm, and has permission to finish the shift from home.
The worker leaves the office at 1 pm for a half-hour drive to the school, meets with the teacher for 45 minutes, then drives home for 30 minutes.
The employer asks if travel compensation is warranted if the worker:
- Immediately resumes working upon arriving home
- Spends an hour doing personal tasks then resumes working
- Spends two hours doing personal tasks before working
- Spends an hour running personal errands, goes home to spend an hour on personal tasks, then resumes working
“We conclude that the time the employee spends in these scenarios is not compensable,” DOL administrator Cheryl Stanton wrote.
In the second case, the worker has a doctor’s appointment from 8:30 to 9:15 am, with a 45-minute drive from home to the doctor, then a 15-minute drive from the doctor to work.
The employee works an hour from home between 5 and 6 am, leaves for the doctor’s office at 7:45 am, then arrives at work at 9:30 am.
The employer asks:
- Is the employee’s one hour of travel time from home to the doctor, then from the doctor to work, compensable?
- Is the employee’s commute time from office to home, where the work day began, compensable?
Stanton said no.
“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 to enable her to effectively use the time for her own purposes,” Stanton wrote.
“Additionally, time 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.”
Continuous Workday Principle
Under the continuous workday doctrine principle, the time between the start and end of the workday, when an employee performs his or her principal tasks, is considered compensable.
Travel time between home and work is not compensable.
Travel between worksites during the workday, however, is compensable, Stanton said, citing federal law and case law.
“When an employee chooses to perform some work before traveling to the office or 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,” she wrote.
This applies equally to workers who must complete a minor task—such as synching a device or uploading information—after returning home from work.
Stanton also provided a separate opinion on compensation for live-in caregivers who typically work a five-day, 120-hour week.
The need for at-home care has increased during the coronavirus pandemic, as people vulnerable to the virus need caregivers to remain in their homes to lower contagion risks.
Because personal hours set aside for these workers for sleeping or eating may be interrupted based on the client’s needs, work hours vary and are unpredictable from week to week.
As a result, employers often pre-calculate compensable hours, including overtime hours, for the worker, paying overtime for anticipated hours over 40 in a week, and paying additional overtime for hours actually worked in excess of the predetermined hours.
One such employer asked whether these pre-calculated overtime payments could be excluded from the regular rate, and whether they could be credited toward any overtime owed.
“Yes to both,” Stanton wrote.
“Provided there is an agreement or understanding (written or unwritten) between the employer and the employee,” she said, U.S. labor law “permits an employer to exclude extra compensation provided by a premium rate paid for certain hours worked in any day or work week because such hours are in excess of eight on a workday or 40 in a work week.”
She added that the law “further permits the employer to credit any payments excludable under [federal labor law] toward overtime pay owed under the Fair Labor Standards Act.”