Remote work prompted by COVID is now being phased out by many in favor of returning to on-site work situations. Now that most workforces are back “in office,” following the Fair Labor Standards Act (FLSA) regarding hours worked should be straightforward, but it always seems to get tricky. The Department of Labor recently published an opinion letter regarding how to calculate an employee’s commute time to and from an office when they are voluntarily not commuting during normal working hours.
The question posed was by an employer who, in good faith, wanted to help his employees with cutting their commute time. The employer was allowing his employees to come in later and leave earlier to beat the commute, but they were still required to work a full workday of 8 hours. If an employee usually works from 9:00 am to 5:00 pm, he/she could spend an hour commuting to be on time at 9:00 am, and an hour commuting home if he/she left the office at 5:00 pm. To alleviate the loss of two hours a day, the employer wanted to allow his employees to come into the office at 10:30 am and leave the office at 3:00 pm. The employees would work from home from 8:00 am – 10:00 am, commute to work, then leave and work from home from 3:30 pm – 5:00 pm. By allowing employees to telework a few hours each day, it saves them an hour of daily commute time. Then the concern becomes: Is the midday commute considered “worktime?”
This seems like a pretty simple question to employers, or is it? It was not defined early in the creation of the FLSA, so the courts had to come up with an interpretation of “worktime.” The courts defined worktime as “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.”
In response to the courts’ definition, Congress enacted the Portal-to-Portal Act, providing a new way of clarifying when employers wouldn’t be required to compensate employees. Essentially, “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which [an] employee is employed to perform” are not compensable activities. 29 U.S.C. § 254(a)(1).
Great! But what about traveling between work sites? “Time spent by an employee in travel as part of his principal activity must be counted as hours worked.” 29 C.F.R. § 785.38. An employee IS compensated when driving between two work sites, for instance, between two construction sites, or from your office to a client’s office, or from your office to a hospital (if you are in the medical profession). That time is compensated as time worked if you are a non-exempt employee. Ordinary driving to work in the morning or later in the day or after work is not compensated.
Ultimately, there are three categories of non-compensated time: meal breaks, off-duty time (after work through the next day of work), and ordinary commute time. These times are not considered compensable under the FLSA. Just as the time commuting to and from work for a doctor’s appointment or coming in to work later because of a sick child or a maintenance issue, the commute is not for work purposes. Because the commute time described by the above employer is ordinary commute time, regardless of what time of day it occurs, it is non-compensable. Remember that DOL opinion letters do not have the force of law and are strictly fact-based, depending on the circumstances presented by the employer.
Now what if I am on a work call during my commute? Well, that’s a story for another blog post! As always, Bricker Graydon Wyatt is here to answer your questions, and you won’t even have to wait for the NLRB to put out an opinion letter.
