Employees who have to attend a parent-teacher lunchtime conference or doctor’s appointment sometimes split their work day between the office and home. So is the travel time to and from the appointment subject to compensation?
Probably not. The Fair Labor Standards Act (FLSA) generally requires employees to be paid for time spent traveling from job site to job site during the work day, including travel between a business and a home office. However, employers do not have to pay workers for hours off work if workers are completely relieved of their duties for periods of time when they can effectively do their personal duties a recently published opinion letter from the U.S. Department of Labor (DOL).
The opinion letter can be helpful during the COVID-19 pandemic as companies continue to seek alternative work arrangements. “Employers and workers who have spent 2020 increasingly adjusting to a remote working ecosystem may find employees who split their working day between working from home and working on their employer’s site,” noted Christina Janice, attorney at Barnes & Thornburg in Chicago. “The DOL opinion letter … reaffirms its previous guidance on determining whether travel time is compensable in the context of the new hybrid workplace reality,” she noted.
The DOL too issued an opinion letter Addressing the premium payment for home care workers who work longer shifts of at least 24 hours.
The continuous working day teaching
“The biggest takeaway from the DOL travel letter is that not all of the travel time incurred during the working day can be reimbursed through the FLSA,” said Steven Pockrass, attorney with Ogletree Deakins in Indianapolis.
According to the continuous working day doctrine, the period between the first and the last main activity of an employee of the day is normally compensated within the framework of the FLSA. “This can bother employers who don’t pay for travel when done between work in different locations, including at an employee’s home,” noted Pockrass.
However, according to the examples in the opinion letter, travel time home is non-refundable if an employee receives permission from their employer to leave work early to attend a parent-teacher conference and then work at home. The time is treated like a way home after the regular working day, he said.
If an employee asks permission to work from home the morning before going to a doctor’s appointment and then goes to the office to continue work, travel time to the doctor’s appointment and then to the office is non-refundable.
The DOL stated that the travel time spent in these examples is not a journey from construction site to construction site. “The employer does not require the employee to travel as part of her job, but to travel voluntarily for her own purposes during her free time,” the department said.
The continuous working day doctrine does not apply to off-duty travel time. “If an employee arranges for her working day to be divided into a home-based block and an office-based block, separated by a block reserved for employees to use for their own purposes, that is reserved time non-refundable, even if the employee uses part of this time to travel between home and office, “said the DOL.
DOL noted that several court rulings may take an opposite approach. However, these decisions analyzed situations where employees might have to work immediately before commuting or immediately after commuting home. “The examples presented in the opinion letter did not contain such a situation,” explained Pockrass.
DOL statements describe how the Agency would, in certain circumstances, enforce laws and regulations presented by an employer, employee, or other party requesting the statement. While the letters are non-binding, there may be a safe haven for employers to show they have relied on you.
Overtime bonuses for caregivers
In a second opinion letter, the DOL deals with overtime bonuses for caregivers and people who work longer shifts of at least 24 hours.
Janice noted that home nursing staff are currently in demand to reduce the risk of transmitting COVID-19. “Home care employers are considering efficient practices to anticipate and pay overtime to their employees who may be working 24 hours a day, several days a week, eating less and getting less sleep,” she noted.
Under the FLSA, employees who are not released from exemption must generally receive 1.5 times their regular pay for all working hours that exceed 40 in a week. Employers must include in the regular phrase “any allowance for employment paid to or on behalf of the employee”, with the exception of certain categories, such as: B. Discretionary Awards, as required by law.
The employer who requested the opinion letter said it was difficult to keep track of the hours actually worked. Therefore, caregivers are paid for all hours of the day, with the exception of up to eight hours for sleeping and taking meal breaks. The employer pays a set overtime bonus for expected working hours in excess of eight per day and provides additional compensation if meals or sleep are interrupted.
In the statement, DOL noted that the employer’s method of providing overtime bonuses is the same as the FLSA. The DOL also said that the employer’s pre-calculated overtime bonuses do not have to be included in the regular wage rate and can be offset against the overtime bonuses actually owed.
“A protocol for the precalculation and adjustment of overtime requires a prior agreement between employer and employee, but this does not have to be in writing,” says Janice. In addition, the employer is not relieved to record the hours actually worked and to record the regular hourly rate of the employees as well as all payments that are excluded from the regular hourly rate.
