Two new opinion letters draw a line between ordinary commuting and travel that becomes part of the employee’s workday.
Nonexempt employees may be able to split their day between home and the office without being paid for the trip between the two locations, according to new guidance from the U.S. Department of Labor.
But the answer changes when an employee begins performing required job duties before leaving home and the employer controls when and where the employee must travel.
The Wage and Hour Division issued two opinion letters in July addressing how the Fair Labor Standards Act applies to remote work, mid-day commuting and field-service employees.
Together, the letters show that the details of the arrangement, particularly who benefits from the travel and how much control the employee has, can determine whether the time must be paid.
Mid-day commuting may remain unpaid
The first opinion letter involved nonexempt office employees who generally did not travel as part of their jobs. The employer wanted to give them more flexibility to divide a workday between home and the office but was concerned that the travel between the two locations would become compensable.
The DOL concluded that travel between an employee’s home and regular office may remain an ordinary, unpaid commute even when it happens in the middle of the workday. The key is that the arrangement is voluntary and primarily benefits the employee.
For example, an employee who normally works from 9 a.m. to 5 p.m. might choose to work from home early in the morning, drive to the office after rush hour and then return home early to finish the day. The employee’s work time at both locations must be recorded and paid, but the two trips may be excluded from paid time.
The DOL said the same principle would apply when an employee stays home for part of the day because of a sick child or a scheduled home repair.
The letter provides two other examples:
- An employee volunteers to work extra hours on a project from home before reporting to the office for the regular shift. The work performed at home is compensable, but the later trip to the office remains an ordinary commute.
- Another employee needs to catch the last bus home before finishing the day’s assignments. The employee may take the bus and complete the work at home. The work performed after arriving home must be paid, but the bus ride is not compensable as long as the employee does not work during it.
In other words, performing work before or after a commute does not automatically make the commute part of the employee’s paid workday.
Field employee’s drive was compensable
The second opinion letter reached a different result for a field service engineer who repaired MRI equipment at client locations.
The engineer worked at client sites from approximately 8 a.m. to 5 p.m. Before leaving home, the employee received service requests and called clients and other employees to arrange the day’s appointments. The engineer then drove an employer-provided vehicle to the first location and sometimes continued making work-related calls during the drive.
The DOL divided those activities into separate categories.
Simply receiving pages or service requests did not, by itself, count as compensable work. The department viewed that activity as incidental to the employee’s use of an employer-provided vehicle for commuting.
The calls to clients and other employees were different. Scheduling appointments was an important part of the engineer’s job and therefore had to be recorded and paid.
The drive to the first client location was also compensable once the employee began making those calls. The engineer was not free to choose the timing or destination of the trip in the same way as someone making an ordinary commute.
In this case, the appointments were arranged around customer needs and the employer required the employee to travel to the assigned locations. Under those facts, the travel primarily benefited the employer.
The difference is more than timing
The two letters show that travel does not become compensable simply because it falls between the employee’s first and last work activities.
A voluntary trip between home and the employee’s regular office may remain unpaid when it serves the same purpose as a normal commute and gives the employee greater scheduling flexibility.
Travel is more likely to be compensable when the employee has already begun performing substantial job duties, the employer determines the time and destination, or the employee continues working while traveling.
The DOL also emphasized that its guidance does not change the usual rules for other forms of travel. Travel from one customer or job site to another during the workday generally remains compensable. Time spent performing work during a commute must also be paid. Special assignments and emergency call-backs may require compensation as well.
Employers should review how nonexempt employees record work performed outside the office, including phone calls, emails, scheduling and other tasks completed before traveling.
Policies should clearly distinguish between ordinary commuting and job-related travel. Employers offering split-day flexibility should also document that the arrangement is voluntary and that employees are not expected to work while traveling.
For field employees, employers should identify the first required activity of the day rather than assuming the workday begins when the employee reaches the first customer. Pre-trip calls or scheduling responsibilities may start the compensable workday and affect whether the following travel must be paid.
The DOL noted that employers and employees may sometimes enter into a written agreement covering variable amounts of at-home work that are difficult to measure precisely. Any agreement must reasonably reflect the time actually worked.
The opinion letters address federal law and depend heavily on the facts presented. State and local wage laws may require payment in additional situations, so employers should review all applicable requirements before changing travel-time practices.
