The Department of Labor announced two opinion letters on December 31, 2020, addressing compliance issues with the Fair Labor Standards Act (FLSA) raised by two separate employers. One of the two letters addresses compensation for travel time occurring on partial telework days; the other on “whether certain overtime payments based on an expected number of hours worked may be credited towards the amount of overtime pay owed under the FLSA.”

In the first letter, the Wage and Hour Division (WHD) of the Department of Labor addressed the “compensability of certain travel time” during an employee’s workday. The COVID-19 pandemic has forced many employers to offer telework options to not only keep their employees safe and healthy but to continue to produce the work needed to stay profitable. These new flexibilities in when and where the work is completed create new questions over when an employee is considered "at work" and therefore compensable.

One employer requested guidance from WHD specifically when an employee only teleworks for part of a day and accomplishes personal errands or tasks on their way to either their telework or work station. Should the time spent going to either workstation be paid at least the federal minimum wage under the FLSA?

In general, “the continuous workday doctrine” stipulates that “the period between the commencement and completion on the same workday of an employee’s principal activity or activities” is considered a time that an employee must be paid. The FLSA outlines the minimum wage for any employee in any state or industry when performing work duties and what wage an employee is entitled to if working over eight hours in a day or forty hours in a week.

When an employee is required to travel between workstations to accomplish their duties, that travel time is considered a part of their continuous workday and therefore compensable. However, in the situation brought up by the employer requesting the clarification, the WHD states that the employer is not requiring the employee to telework, the employee has chosen that flexible work schedule. The WHD determines an employee is considered working or performing a work duty when an employee’s actions are “primarily for the benefit of the employer.” The WHD likened the travel time to commuting, which is not considered a portion of an employee’s workday.

The WHD concluded that “when an employee (a) chooses to perform some work before traveling to the office or (b) chooses to perform work at home after leaving the office,” and has time in between workstations to “use effectively for her own purposes, the time she spends traveling between home and office is not compensable.

The second letter the WHD addressed concerned the “practice of paying overtime based on an expected number of hours worked to caregiver employees who work live-in and extended shifts of 24 hours or more for anticipated work hours.” The employer that posed the question employs either live-in or extended-shift caregivers and has a policy of paying its employees overtime for hours an employee is expected to work either over 8 hours in one day and/or more than 40 hours in a week.

The WHD agreed with the policy of the employer and took the opportunity of the question posed to further clarify that the FLSA allows an employer to exclude hours an employee sleeps as long as “several conditions are met.” Live-in caregivers who are not compensated for their sleep time must be provided “private quarters in a homelike environment.” Employees also must be allowed no less than five hours of sleep to be considered reasonable sleep time.

Cheryl M. Stanton, Administrator of the Wage and Hour Division, announced in the press release of the two opinion letters that they were further proof that the Department of Labor is committed to “provid clarity to ensure workers are paid all the wages they have legally earned and employers compete on a level playing field.” The WHD issued 20 opinion letters in 2020 on topics ranging from when to pay overtime to how to calculate hours worked and from the compensability of attending voluntary training programs to what rates of pay part-time employers are paid.