Seyfarth Synopsis. In the final hours of 2020, the U.S. DOL’s Wage & Hour Division issued an opinion letter containing guidance on the compensability of time commuting to the office, or tending to personal matters, for employees primarily working from home. While fact-specific, the letter offers a glimpse into WHD’s current thinking on increasingly common issues in a changed workplace.
The pandemic has changed the way we work. For many employees across numerous industries, the most basic aspects of work—where we work, when we work, how we work—have evolved dramatically since the spring of 2020. In turn, many employers have been forced to confront circumstances and issues that evaded the radar just one year ago.
Continuing its efforts to clear muddy waters, the Wage & Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) closed 2020 by issuing two new opinion letters, one concerning the compensability of normal commute time and other personal time for employees who work from home (“WFH”), and another more nuanced letter relating to whether certain pre-calculated premium payments may be excluded from overtime pay calculations, specifically in the context of live-in or 24-hour-shift workers. Given its broader reach and implications, we focus here on the former letter.
In Opinion Letter 2020-19, WHD offers clarity on its interpretation of the so-called “continuous work day rule.” That rule generally provides that, other than a bona fide meal period, all time between the first and last principal work activities of the workday is compensable. A strict interpretation of the rule could lead to harsh consequences in the WFH setting, where employees may tend to personal, non-work matters between their first and last principal work activities, such as helping to facilitate a child’s remote learning or choosing to change work locations.
As we reported, earlier in 2020, the DOL issued guidance relaxing the continuous workday rule through the end of 2020 for employees teleworking due to “COVID-19 related reasons.” Though a welcome development, this led many employers and their advocates to wonder: what will the continuous workday rule mean (i) for employees working from home other than for “COVID-19 related reasons,” or (ii) after 2020?
In its year-end guidance, WHD confirmed its continued reasonable interpretation of the continuous workday rule. In the opinion letter, the Division addressed the continuous workday rule as applied to an employee who works from home in the morning and then commutes to the office. Specifically, the DOL was asked to opine on whether time the employee spent commuting to the office on her own volition, or traveling to a personal appointment and then to the office—neither of which are compensable as a general matter—would be compensable under the continuous workday rule if preceded by performing some work at home.
WHD concluded that this time was not compensable. At a broad level, WHD explained that the continuous workday rule has several exceptions, one of which provides that when an employee is completely relieved of job duties, such that she can use time effectively for her own purposes, the time is non-compensable. Also, the Division pointed out that normal home-to-work and work-to-home commute time is expressly deemed non-compensable under the FLSA regulations. The Division distinguished this sort of travel time from worksite-to-worksite travel during the workday, which is compensable, on the grounds that the employer did not require the travel as part of the employee’s work, but rather the travel was of the employee’s own volition during off-duty time.
In reaching this conclusion, WHD was mindful of the changed work environment for so many employees across the country. The Division noted that employees may now be dividing their days into blocks with some time working at home, other time at the office, and some time in between to handle personal matters. Cognizant of these realities, the Division provided ammunition for employers to push courts to adopt a reasonable interpretation of the continuous workday rule—one pursuant to which employees, rather than being paid “punch to punch” but for a meal break, need not be paid for blocks of off-duty time that they can effectively use for their own purposes.
It’s important to note that opinion letters are provided in response to fact-specific circumstances and are generally regarded as persuasive, rather than binding, authority. Moreover, with a new Administration coming to Washington, D.C., a withdrawal or revision of various DOL guidance, including WHD opinion letters, is possible.
If you would like to discuss the impact of the guidance detailed in this post, please feel free to contact the authors or your favorite Seyfarth Shaw attorney.