Employers May Not Need to Pay for Certain Travel Time Between Home and Office Work

Remote work arrangements, or teleworking, have become part of many daily work routines. But how do employers pay staff who work in the office, too? The combination of in-office and remote working presents new issues under the Fair Labor Standards Act.

The Department of Labor (DOL) issued an opinion on whether employers must pay workers for some travel time in the telework setting. The opinion letter referenced two examples:

Example 1: An employee has a parent-teacher conference at school from 1:30-2:15 p.m. The employee is approved to work from home after the conference, rather than returning to the office. The employee leaves the office at 1 p.m., drives for 30 minutes to the conference, and then drives for another 30 minutes to her home after the conference. Does the employee have to be paid for the time spent driving from the office to the school and from the school to her home?

Example 2: An employee has a doctor’s appointment at 8:30 a.m. The drive from the  employee’s home to the appointment takes 45 minutes. After the appointment, the drive from the appointment to the office takes 15 minutes. The employee has been approved to work from home before the appointment and will work in the office after the appointment. In this scenario, the employee worked from home from 5-6 a.m. and was free to perform personal activities between 6 a.m. and 8 a.m. before leaving for the doctor at 8 a.m. Her appointment finished at 9:15 a.m. and she arrived at work at 9:30 a.m. Does she have to be paid for her travel time from home to the doctor and from the doctor to the office?

The DOL concluded that the employer did not have to pay the employee for travel time under either example. 

Under Example 1, between leaving work at 1 p.m. and returning to work at 2:45 p.m., “[t]here is no question that such an employee is free to use her time effectively and for her own purposes before resuming work.” Similarly, the employee does not have to be paid for travel time in Example 2, because starting at 6 a.m., she was off duty and had a “block of time to use effectively and for her own purposes.” Importantly, the employee was free to choose the hour at which she would return to work, and the DOL specifically noted that it was not opining on situations in which the employee was required to perform work at any specific time. 

Even though many employees are using their homes as offices, travel between the employee’s home, a personal appointment, and the employer’s office was not “worksite-to-worksite” travel that would otherwise need to be paid for. In these situations, the travel is for the employee’s own purposes during off-duty time rather than as part of the principal activity of work. Generally, employers must pay employees for the time between an employee’s first and last principal activity, but the circumstances presented in these examples compel a different result. Citing the U.S. District Court for the District of New Mexico, the DOL noted that “taken to its logical conclusion,” an employee who chooses to prepare materials for the day at 4 a.m. and return to sleep, rather than prepare materials at 6 a.m., would be entitled to pay for her sleep time. This cannot be the case merely because an employee decides to perform her daily routine in a particular manner.

In summary, “When an 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.” 

Please contact Molly McDiarmid or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice or guidance.