Christine CosslerJanuary 25, 2021

The Department of Labor (DOL) Wage and Hour Division (WHD) recently issued guidance, in the form of an opinion letter, addressing whether certain travel time for partial-day teleworkers is compensable time under the Fair Labor Standards Act (“FLSA”).

While it does not carry the same force as a statute or regulation, an opinion letter is an official interpretation by the DOL on how it believes the FLSA applies in specific circumstances. In turn, because the DOL has enforcement authority over FLSA complaints, these opinion letters provide useful guidance to employers.

In Opinion Letter FLSA 2020-19, the DOL considered whether an employee who  teleworks for part of the day and works at the office for part of the day, while completing personal tasks in between, must be compensated for the intervening travel time. This factual scenario has become more common during the COVID-19 pandemic as employers continue to implement flexible and alternative work arrangements.   In answering this question, the DOL considered two hypothetical scenarios: (1) an employee who leaves the workplace to attend a parent-teacher conference and works remotely after the conference and, (2) an employee who works remotely in the morning, attends a doctor’s appointment and then travels to the office for the remainder of the work day.  In both of these scenarios, the WHD concluded that payment for the travel time was not required under the FLSA.

Under the FLSA, the time a non-exempt employee spends traveling to and from work is not compensable if it occurs before an employee starts or after the employee stops work. However, time spent traveling during normal work hours to and from multiple worksites is considered compensable travel time.  Further, under the continuous workday doctrine, all time between the employee’s first and last principal activity of the day is generally considered compensable work time.

In the first scenario addressed in the Opinion Letter, the DOL concluded the travel time between leaving the office and resuming teleworking was not compensable under the FLSA because “her time [was] hers to do with as she pleases.”  The DOL reached a similar conclusion regarding the second scenario, stating, “when employee arranges for her workday to be divided into a block worked at home and a block worked at the office, separated by a block reserved for the employee to use for her own purposes, the reserved time is not compensable, even if the employee uses some of that time to travel between home and the office.”

The DOL also concluded the travel time was not compensable under the worksite-to-worksite rule because the employer was not requiring the travel as part of the employee’s work, but rather the travel was for their own purposes. The DOL further concluded the continuous workday doctrine did not apply because the employees were “off-duty” during the travel time.

Wage and hour issues remain fact specific so if you have any questions, please contact us here.

Christine Cossler is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at ccossler@walterhav.com or at 216-928-2946.

Elizabeth Bolduc is an associate at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at ebolduc@walterhav.com or at 216-658-6218.