Employers don’t have to pay for midday commutes, says DOL

On July 22, the U.S. Department of Labor (DOL) issued an opinion letter on whether employers must pay employees for time spent commuting in the middle of the workday. The DOL said employers don’t have to pay for this time since normal commute time isn’t considered “hours worked,” and thus isn’t paid time.

The letter covers three situations where nonexempt (“hourly”) employees start work at home, travel to the worksite later, spend part of the day there, return home before the workday ends, and/or finish working from home.

The scenarios are as follows:

1. A nonexempt employee is scheduled to work from 9:00 a.m. to 5:00 p.m. and usually drives to the office from 8:00 a.m. to 9:00 a.m. and home from 5:00 p.m. to 6:00 p.m. To avoid rush hour, the employee asks to work at home from 8:00 a.m. to 10:00 a.m., drive to the office from 10:00 a.m. to 10:30 a.m., drive home from 3:00 p.m. to 3:30 p.m., and finish work at home from 3:30 p.m. to 5:00 p.m. The employee takes a 30-minute lunch break at noon, regardless of location, so the employee still works 7.5 hours.
2. A nonexempt employee volunteers to work extra hours on a short-staffed special project. The employee wants to do the extra work early in the morning at home before leaving for the regular office shift, instead of going to the office early or staying late.
3. A nonexempt employee takes the city bus to and from the office and can’t finish the day’s work before the last bus leaves. The employee asks to take the work home and finish it after arriving home, including overtime hours.

The DOL said the employers in these scenarios wouldn’t have to pay employees for home-to-work or work-to-home travel because the travel wouldn’t qualify as “hours worked” under the federal Fair Labor Standards Act. Instead, the travel would be an ordinary commute, which is a normal part of employment and primarily benefits the employee.

In general, an ordinary commute is not worktime, even if it happens during the continuous workday. This clarification is helpful because remote work and split workdays between home and another work location have become more common.

Employers must, however, pay nonexempt employees for their time traveling between worksites during a workday, as that would be considered paid time since they’re working on the employer’s behalf. If, for example, an employee arrived at the office at 8:00 a.m. and then later in the day drove 30 minutes away to attend a work-related meeting, that travel time would be paid.

Key to remember: Employers don’t have to pay for time employees spend commuting to and from work, even if the commute happens during the workday, instead of before or after the workday.