According to U.S. Department of Labor regulations issued under the Fair Labor Standards Act, if a non-exempt employee reports to work in the morning and then travels during the working day to another worksite, that travel time is considered compensable working time. Under these rules, how should employers treat employees who work a hybrid telework schedule? For example, an employee works from home in the morning and then travels to the office where she works for the remainder of the day. Is travel from home to the office under this circumstance considered compensable working time?

In a new opinion letter issued last month by DOL, if the employee has a break in which she has the flexibility to perform non-work tasks between telework and reporting to the office, the time spent commuting to the office during this break is not working time under the FLSA. It would only become working time if the employer requires the employee to continuously work up to the point of leaving to travel to the office.

Employers can avoid liability for payment of travel time by providing the employee with an unpaid break between the two work locations. In the DOL opinion letter, the hypotheticals used breaks of one hour or more. While there is no specified length of time required to establish a non-continuous working day, employers should err on the side of providing the employee with ample time to commute and attend to personal errands.