All information in this COVID-19 Response Resource issue is effective as of June 23, 2020.
Currently, nearly half of American workers telecommute—approximately twice as many as those who worked from home prior to the COVID-19 pandemic.[1] Telecommuting creates both logistical and legal challenges for many employers. One of those challenges is how to comply with the wage and hour requirements of the Fair Labor Standards Act (FLSA) when a telecommuter occasionally commutes to the workplace.
The FLSA generally requires that employers track and pay employees for the number of hours the employee works.[2] However, under the aptly named Portal-to-Portal Act, time spent commuting from home to the workplace generally does not count as worktime.[3] As the FLSA regulations explain, “[a]n employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment.”[4] This rule should come as no surprise to most employers.
While this general rule seems straightforward, complications arise when an employer allows its employees to work from home part-time. The regulations clarify that the general rule applies only to time spent commuting before and after the employees “workday.”[5] Therefore, if an employee commutes to the office after the employee’s workday has already commenced, the employee should be compensated for the time spent commuting.[6]
This situation may arise when an employer allows an employee to telecommute but at times requires the employee to come to the workplace. For example, an employee might start the workday at home but go to the office in the afternoon for a meeting. In that instance, the employee’s time spent traveling to the office would be worktime. Similarly, if the employee works from the office in the morning but travels home to work in the afternoon, the employee should probably be compensated for the time spent traveling home.
An employer must be extra cautious when it allows employees to work remotely part-time. Any time spent traveling between the employee’s home and the employer’s office during the workday will likely be counted as worktime under the FLSA. If you have any question about this topic, please contact Christina Jepson by calling (801) 536-6820 or send an email to cjepson@parsonsbehle.com.
[1] https://www.brookings.edu/blog/up-front/2020/04/06/telecommuting-will-likely-continue-long-after-the-pandemic/
[2] 29 C.F.R. § 785.1
[3] 29 U.S.C.A. § 254(a)
[4] 29 C.F.R. § 785.35
[5] 29 C.F.R. § 790.6
[6] “Workday” is defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” 29 C.F.R. § 790.6. Whether an activity is a “principal activity” is inherently a fact-specific question. For example, the Supreme Court has held that knifemen in a meatpacking plant who sharpened their knives before and after their scheduled workday were engaged in a “principle activity.” Mitchell v. King Packing Co., 350 U.S. 260, 262, 76 S. Ct. 337, 339, 100 L. Ed. 282 (1956). And, in another case, employees in a battery plant engaged in a “principal activity” when they changed their clothes and showered after the end of their scheduled work periods due to the toxic and caustic chemicals used in the manufacturing process. Steiner v. Mitchell, 350 U.S. 247, 248, 76 S. Ct. 330, 331, 100 L. Ed. 267 (1956).
