The U.S. Department of Labor’s Wage and Hour Division recently issued two opinion letters addressing how the Fair Labor Standards Act (FLSA) applies when non-exempt employees perform work at home before, after, or around their commute. Together, the letters distinguish between an ordinary commute undertaken primarily for the employee’s benefit, which generally is not compensable, and travel that is sufficiently intertwined with work performed for the employer’s benefit that it may become compensable.
In , the DOL considered employees who voluntarily split their workday between home and the office. The examples included an employee who worked from home before driving to the office to avoid rush-hour traffic, an employee who performed additional work from home before beginning a regular office shift, and an employee who left the office early enough to catch the last bus and finished working after arriving home. The DOL concluded that the travel between home and the office remained an ordinary, noncompensable commute in each situation, even though it occurred between periods of compensable work. According to the DOL, allowing employees to alter the timing of their commute for their own convenience does not transform an otherwise ordinary commute into compensable worktime merely because it occurs in the middle of the workday.
illustrates where the analysis can change. There, a field service engineer received assignments at home each morning and was required to call clients and other engineers to arrange appointments before traveling to the first client site. The DOL distinguished the few seconds the employee spent receiving each assignment, which it considered incidental to commuting in an employer-provided vehicle, from the more substantial time spent calling clients and coordinating appointments, which was integral to the employee’s job and therefore compensable.
Those work activities could also affect whether the travel itself was compensable. For example, where the employee was required to spend most of the hour immediately before leaving home making client calls and then immediately drive to the first worksite at a time and in a manner dictated by the employer, the DOL concluded that the drive no longer had the characteristics of an ordinary commute and was compensable. Similarly, if the employee began making required client calls while driving, the employee’s workday began with those calls, and the remaining travel to the first client site could be compensable.
The two letters draw an important distinction for employers offering remote or hybrid work arrangements. Performing work at home before or after a commute does not automatically make the commute compensable. However, schools should be cautious when requiring non-exempt employees to perform substantial work immediately before or during their commute, particularly where the employer controls the timing and manner of the travel. The DOL emphasized that whether travel is an “ordinary” commute can depend on the totality of the circumstances and whether the travel primarily benefits the employee or employer.
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LCW recommends that schools offering flexible schedules or hybrid work arrangements to non-exempt employees establish clear expectations about when employees may perform work remotely and how that time should be recorded. In addition, it is important to note that these opinion letters address employers’ obligations under the federal FLSA only. California has its own standards for determining compensable worktime, so schools should also separately evaluate state-law requirements.