DOL Issues Opinion Letters on Mid-Day Commute and Pre-Shift Activities
- As hybrid and remote work arrangements become more permanent fixtures in the workplace, the flexibility offered through this work brings more complex scenarios as to what the law considers to be compensable “work time.” The U.S. Department of Labor (“DOL”) has issued two opinion letters clarifying the compensability of travel time for remote and field work under the Fair Labor Standards Act (“FLSA”). These opinion letters, while only considering specific fact patterns, provide at least some practical guidance that employers can follow to avoid costly wage-and-hour disputes.
- In the first letter, FLSA2026-9, the DOL contemplated whether an employee’s time voluntarily commuting into the office mid-day is considered “work time.” In this scenario, the employee works both at home and in-office, and the employer offers an alternative mid-day commute to cut down on traffic time. The letter addresses three different fact patterns: (1) the employee changes the commute time to avoid rush hour traffic, working at home in the morning prior to coming into the office, and then working again in the late afternoon after leaving; (2) the employee volunteers to work additional hours but only if the employee can do that work prior to driving into the office instead of arriving early or staying late; and (3) the employee uses the city bus to commute and requests permission to bring work home to complete. The DOL concluded that in each of these three scenarios, the travel between the employee’s home and office is considered an ordinary commute and is not considered hours worked under the FLSA. Remember that if the employee engages in any work while traveling, that time must be paid. In addition, this letter only addresses mid-day travel when the office is the employee’s regular place of work. If, however, the travel is to a special temporary assignment or is a principal activity of the employee’s job (i.e., travel between client worksites), this analysis may differ.
- The second letter issued by the DOL, FLSA2026-10, concerns a field service engineer with no primary office who spends time receiving pages and making phone calls to clients and other engineers to schedule appointments prior to or while driving from their home to their first client appointment in an employer-provided vehicle. The DOL concluded that time spent receiving pages is not compensable because that work is incidental to the employee’s use of an employer-provided vehicle for commuting. Time spent calling clients and scheduling appointments, however, is compensable hours worked because those calls are integral and indispensable to the employee’s principal duties. Less clear is the drive time from the employee’s house to the first client appointment. Whether that commute is compensable hours worked depends upon when the employee’s workday starts. Because client calls are a principal activity, as soon as the employee makes one call, the workday begins. Therefore, if the employee makes calls and then drives to the first client worksite, all of that travel time is compensable, even if it happens before 8:00 a.m. If instead the employee leaves home first and then makes calls during the drive, that drive time is unpaid as ordinary commuting until the first call is made. Essentially, the DOL concluded that the workday begins when the first compensable call begins, so any travel time after the beginning of that first phone call is compensable hours worked.
Senate Confirms Macy and Prouty to NLRB
- The U.S. Senate has confirmed James Macy and David Prouty to the National Labor Relations Board (NLRB).
- Macy, a Republican, will give the Board a 3-1 Republican majority once sworn in. Prouty, a Democrat and current Board member, was confirmed for a second term.
- The confirmations also ensure the NLRB will maintain a working quorum when Prouty’s current term expires later this month and allow the Republican majority to change Biden-era decisions if they so choose.
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