With return-to-office in full swing, the private sector continues to take cue from the public sector. President Joe Biden urged federal agencies to return to work, prompting conversations about what RTO looks like in practice.
The pandemic’s imperative for many to work from home “shook up the workplace,” David Barron, an attorney at Cozen O’Connor, told HR Dive – and “wage and hour law is no exception.”
On Aug. 22, the Office of Personnel Management issued guidance regarding whether the Fair Labor Standards requires that federal workers be compensated for their commute to work. The bottom line: it depends on whether a worker is categorized as a remote worker or a teleworker, and when the commute happens.
But could hybrid workers be entitled to pay for that time as well?
“The default under federal law has long been and remains today that ‘commute time’ is not compensable under the FLSA,” Barron acknowledged via email, but the Biden memo brings up fresh questions.
The crucial question: Did work start before the commute time?
“The rules set forth in the memorandum are largely applicable in the private sector as well. The most important principle in deciding whether time spent traveling is ‘commute time’ is whether the work day has already started. This is where things get gray if an employee is working from home, or in a hybrid arrangement,” Barron said.
He gave the example of how getting in a car and driving to work is obviously a form of commuting.
“But, what if the employee opens up a laptop and spends an hour responding to early morning emails before driving to work? Under federal law, the drive to work may now be compensable time because the travel occurs in the middle of the work day,” Barron said.
“Making matters more complicated, the answer on the compensability of the travel time in that scenario may turn on whether the employee’s work site for the day is their home, or the office to where they are traveling, and whether it was the employee’s choice to go to the office or required.”
Ultimately, Barron said employers “should exercise caution in allowing non-exempt employees to start their work day at home if they are also going to be required to travel to a work location that same day.”
If work in the office is required, “work should not start until they reach the office,” Barron said. He added that compensability of travel time may vary by state law and recommended employers consult with local counsel to craft policies therein.
