By Jo Ellen Whitney

The COVID-19 pandemic has resulted in countless hybrid and remote work situations, and employers continue to grapple with compensable vs. noncompensable time. A December 2020 opinion letter from the U.S. Department of Labor (DOL) about the Fair Labor Standards Act (FLSA) may provide clarity.

DOL Opinion Letter to the Rescue

For hourly employees continuing to do their jobs remotely or following a hybrid work schedule, questions continue to arise about what time is paid or unpaid. Complications arise when the workers have fluid schedules, e.g., running errands in the middle of the day only to go to a meeting at the office later.

The DOL opinion letter FLSA 2020-19, dated December 31, 2020, may be useful for those of you who feel the issues have gotten more complex because of the hybrid schedule. The letter looks specifically at travel time for an employee who chooses to work remotely for part of the day and in the office for the rest.

The letter also addresses a large number of fact patterns, including an employee who had a one-hour commute to work. We cover two examples below.

First Fact Pattern

The employee worked in the office in the morning, had a parent-teacher conference for 45 minutes in the afternoon, and then decided to work from home for the rest of day rather than return to work.

The DOL’s opinion letter noted: “In general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities” is considered compensable under the continuous-workday doctrine. The agency further pointed out travel between different worksites is generally considered compensable.

In the example, the DOL determined that when the employee left the office to attend her child’s conference, the time between when she left the office to actually resume her work later was noncompensable. The agency noted the principle of noncompensable time applies when the employee:

• Has the opportunity to engage in personal activities; and
• “May freely choose the hour at which she resumes working.”

Second Fact Pattern

In another example, the employee worked from home early in the morning and then left in the middle of the day to attend a physician appointment.

If the employee then came into the office, the travel time also wouldn’t be compensable under the same theory. She was “traveling of her own volition for her own purposes during her off-duty time.”

Bottom Line for Employers

Review the DOL opinion letter and remain flexible as the work scheduling issues evolve.

Jo Ellen Whitney is an attorney with the Denton Davis Brown in Des Moines, Iowa. Jo Ellen handles a variety of issues ranging from business planning and contracts to representation before administrative agencies such as the Iowa Civil Rights Commission, the EEOC, Iowa Workforce Development, OSHA, and the Department of Labor, as well as state and federal courts.  You can reach her at joellen.whitney@dentons.com.