Across the United States, many employers have moved to a remote or flexible (often called hybrid) working schedule to attract and retain employees. Employers have also found that allowing employees to work remotely has saved money on office space, increased employee satisfaction, and in some instances, increased employee efficiency and productivity. For non-exempt employees, however, tracking time continues to be a challenge, especially as it relates to an occasional trip into the office.
The Fair Labor Standards Act (FLSA) requires employers to compensate non-exempt employees for every hour that they perform “work” for the employer. Though it may seem intuitive, the FLSA does not define what constitutes compensable “work.” As it relates to an employee’s commute time, Congress eventually passed the Portal-to-Portal Act of 1947, which narrowed the FLSA’s coverage by providing (among other things) that compensable work does not include walking, riding, or traveling to and from the actual place of performance of the principal activity the employee is employed to perform.
This means that the travel time from home to work and from work to home is not compensable time under the FLSA. However, travel is compensable between job sites after work has begun for the day. The general rule, however, is and always has been that the FLSA does not treat ordinary home-to-job-site travel as compensable.
What happens when a hybrid employee works from home, say three days out of the week? Would this convert the employee’s home office to a job site that then requires compensation for travel to the office during the working day? According to the Department of Labor (DOL), the answer is no.
In 1999 and then confirmed again in 2018, DOL’s Wage and Hour Division stated in opinion letters that working from home or a hotel does not make that home or hotel a job site for purposes of counting work or travel as compensable time. Because both of those opinion letters were issued before the COVID-19 pandemic, a change may be forthcoming, but neither DOL nor Congress has made any changes to the prior rules. Therefore, a hybrid working arrangement probably does not require compensation for time spent traveling to and from the office, regardless of where the employee lives.
The answer may be different for a fully remote employee who lives a considerable distance from the office but is asked to come in on rare occasions. According to DOL rules, this type of unusual or extraordinary travel requirement may make part or all of the employee’s commute compensable working time. These questions are very fact-specific, and employers should carefully review each employee's circumstances before deciding what is and is not compensable working time.
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