Legislative lowdown: Employers don’t have to pay workers for some midday commutes

The Department of Labor (DOL) recently issued a pair of opinion letters detailing how the Fair Labor Standards Act (FLSA) applies to two situations where employees commute during the workday.

In one opinion letter, the DOL said the employer of a large, non-exempt workforce wouldn’t be obligated to pay employees for the time they spent commuting midday. At the time of writing the letter, the employer hadn’t permitted its office employees to work from more than one location (i.e. home, then office) in a single workday. The business wanted to grant these employees the flexibility to do so, but didn’t want to compensate them for time spent commuting.

The employer wouldn’t have to compensate these workers for midday travel under such circumstances, the DOL said. The agency clarified that “an ordinary home-to-work or work-to-home commute” would qualify as a category for which businesses aren’t required to pay workers, akin to lunch breaks or off-duty time.

Andrew B. Rogers, an administrator with the DOL, cited previous case law underpinning this analysis. A statute enacted in 1947, called the Portal-to-Portal Act, does state that workers should be compensated for certain activities that occur during the workday, but commuting from home to work doesn’t generally fall under one of these categories, the official said.

A separate opinion letter, however, does offer one example of a situation in which an employer would be required to pay an employee for their commuting time.

An engineer responsible for installing and servicing MRI systems wrote to the DOL to inquire whether they should be paid for time spent calling clients to schedule appointments before their workday began, including some calls made en route to the first appointment.

This engineer is entitled to compensation for the time they spend scheduling these appointments, including while on the road, Rogers wrote in the letter. The agency reasoned that scheduling appointments was “integral and indispensable to your principal work activities of installing and servicing equipment at client sites.” Additionally, if the employee made calls to schedule appointments on the road, this wouldn’t be considered an “ordinary” commute. Their employer would thus be obliged to pay them for this time.

What this means for HR. Taken together, these opinion letters may help inform how employers design policies related to hybrid work and commuting.

Businesses’ obligations to compensate employees during midday commutes will generally hinge on the question of whether they’re performing activities that are primarily for their benefit, or the employer’s, Charlotte C. Smith, an attorney with Ogletree Deakins, said in a blog post. She recommended reviewing midday commutes to ensure they’re “genuinely voluntary, primarily for the employee’s benefit, and free of actual work during the travel.”

She also noted that some state wage and hour laws “may treat travel and commute time more expansively than the FLSA.” HR teams, then, may consider how federal and local statutes interact with one another when addressing this matter.