DOL Says Not All Employee Travel During the Workday Is Compensable

Labor Department also addresses overtime premiums for live-in caregivers

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Employees who need to attend a midday parent-teacher conference or doctor's appointment sometimes choose to split their workday between the office and home. So is the time spent driving to and from the appointment compensable?

Probably not. Under the Fair Labor Standards Act (FLSA), employees generally must be paid for time spent during the workday traveling from worksite to worksite, which may include traveling between a business and home office. However, employers don't need to pay employees for off-duty hours when employees are completely relieved of their duties for periods that allow them to effectively complete personal tasks, according to a recent opinion letter from the U.S. Department of Labor (DOL).

The opinion letter may be helpful during the COVID-19 pandemic as businesses continue to explore alternative work arrangements. "Employers and employees who spent 2020 adjusting to a remote-work ecosystem increasingly may find employees dividing their workday between working from home and working at their employer's worksite," noted Christina Janice, an attorney with Barnes & Thornburg in Chicago. "The DOL's opinion letter … reinforces its prior guidance for determining if travel time is compensable, in the context of the new hybrid-workplace reality," she noted.

The DOL also issued an opinion letter addressing premium pay for in-home health care workers who work extended shifts of at least 24 hours.

The Continuous Workday Doctrine 

"The biggest takeaway from the DOL's travel-time opinion letter is that not all travel time that occurs during the workday is compensable under the FLSA," explained Steven Pockrass, an attorney with Ogletree Deakins in Indianapolis.

Under the continuous workday doctrine, the period between an employee's first and last principal activities of the day will usually be compensable under the FLSA. "This can trip up employers who don't pay for travel when it occurs in between work performed at different locations, including at an employee's home," Pockrass noted.

However, under the examples provided in the opinion letter, if an employee receives permission from his or her employer to leave work early to attend a parent-teacher conference and then to perform work at home, the travel time back home is not compensable. The time is treated like a commute home following the regular workday, he said. 

Similarly, if an employee asks for permission to work from home in the morning prior to attending a doctor's appointment and then goes to the office to continue working, the travel time to the doctor's appointment and then to the office is not compensable.

The DOL explained that the time spent traveling in these examples is not worksite-to-worksite travel. "The employer is not requiring the employee to travel as part of her work; rather, she is traveling of her own volition for her own purposes during her off-duty time," the department said.

The continuous workday doctrine doesn't apply to off-duty travel time. "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 be used for her own purposes, the reserved time is not compensable, even if the employee uses some of that time to travel between home and office," the DOL said.

The DOL noted that several court decisions may appear to take a contrary approach, but those decisions analyzed situations where the employees were potentially required to perform work immediately before commuting or immediately after commuting home. "The examples presented in the opinion letter did not involve such a situation," Pockrass explained.

DOL opinion letters describe how the agency would enforce statutes and regulations in specific circumstances presented by an employer, worker or other party who requests the opinion. Although the letters are not binding, there may be a safe harbor for employers that show they relied on one.

Overtime Premiums for Live-in Caregivers

In a second opinion letter, the DOL addresses overtime premiums for live-in caregivers and those who work extended shifts of at least 24 hours.

Janice noted that live-in home health care workers are currently in demand to reduce the risk of transmitting COVID-19. "Employers in the home health care space are considering efficient practices for anticipating and paying overtime to their workers who may work shifts of 24 hours per day, several days a week, less meals and sleep," she observed.

Under the FLSA, nonexempt employees generally must be paid 1.5 times their regular rate of pay for all hours worked beyond 40 in a week. Employers must include in the regular rate "all remuneration for employment paid to, or on behalf of, the employee," except for specific categories, such as discretionary bonuses, according to the statute.  

The employer that requested the opinion letter said tracking actual hours worked is difficult, so it pays live-in caregivers for all hours in the day except for up to eight hours for sleeping and taking meal breaks. The employer pays a predetermined overtime premium for the expected hours worked beyond eight per day and provides supplemental compensation if meal or sleep time is interrupted.

In the opinion letter, the DOL found that the employer's method of providing overtime premiums complies with the FLSA. The DOL also said that the employer's pre-calculated overtime premiums don't have to be included in the regular rate of pay and can be credited to the overtime premiums that are actually owed.

"A protocol for pre-calculating and adjusting overtime requires prior agreement between the employer and employee, although it need not be in writing," Janice noted. Additionally, she said, the employer is not relieved from tracking actual hours worked and recording workers' regular hourly rate and any payments that are excluded from the regular rate. 

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