Lately, there has been a lot of “action” from the USDOL on the thorny and misunderstood issue of travel time. The agency has just issued another Opinion Letter that addresses the issue of whether employers must pay workers for travel time on days when they spend part of the day working from home and the other half of the day in the office. The USDOL concluded that payment for such travel time was not warranted.
The Opinion Letter takes the (in my view) correct position that, provided the employee may use his time “to use effectively for her own purposes” between working from home and then switching to the office, employers are not compelled to pay for travel time. The Opinion Letter notes that “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.”
As they often do, the Opinion Letter addressed two hypothetical situations. In the first scenario, the worker departed the office in the afternoon to attend a parent-teacher conference. He then went home and resumed work, after one hour of travel to/from the school. The Opinion Letter found that the time between leaving the office and clocking back in from home was not working time because the employee could do “as she pleases” with that time and thus no travel pay could be awarded.
In the second scenario, the worker signed in from home for one hour, went to see a doctor and then drove to the office. Although the work time prior to the doctor visit was obviously compensable, the time spent in transit/travel between that doctor appointment and then back to the office was not compensable because the employee still had “a block of time to use effectively and for her own purposes.”
The Wage Hour Administrator, Cheryl Stanton, also concluded that the time was not compensable because the employer did not require it as part of the normal duties of the employee. The Administrator also addressed the issue of the “continuous workday” doctrine, under which employers must pay workers for the time band between when they start performing productive tasks and when they end their work day. This doctrine was inapplicable because the worker was off-duty during when they were traveling.
This is a very sensible take on this rather new issue that is a by-product of the COVID pandemic. Note that the Administrator observed that the employer did not require this travel as part of the employee’s duties, hearkening back to the US Supreme Court decision in Busk. Further, she referenced the issue of using the time for one’s own pursuits and benefits is another longstanding concept applicable to these kinds of activities.
Well done, Ms. Stanton…