Hybrid Employees: Travel Time or Normal Commute Time?

Generally, travel from home to work and back (i.e., commute time) is usually not compensable under federal or California law. However, travel during the workday may be compensable when an employee travels between worksites or when the travel is part of the employee’s principal work activities. Now, consider this: when a hybrid employee begins their day at home and then travels to the office mid-day, is this compensable or is it considered normal commute time?

DOL Opinion Letter on Hybrid Employees

A recently-issued Department of Labor (DOL) opinion letter provides us with new guidance stating that mid-day travel between a work-from-home location and a work-related function does not automatically require compensation under what it labeled as the “continuous work doctrine.”

Under the federal Fair Labor Standards Act (FLSA), the “continuous work doctrine” provides that all time between an employee’s first principal work activity and their last principal work activity of the day is compensable. Employers argued that a hybrid employee who starts their day at home and then travels to the office to finish the day onsite should not be eligible for travel time, as that is their normal commute time. The DOL agreed under the facts and found that an ordinary home-to-work commute is not paid time just because it happens in the middle of the day.

Keep in mind, however, that agency opinion letters are not legally binding, and a court may disagree with their interpretation of the law. The opinion was also fact-specific and should not be interpreted as establishing that every mid-day trip is not compensable.

Existing Requirements Remain

The following remains compensable under the FLSA:

• When the employee travels during the workday from one worksite to another
• If travel itself is part of the employee’s “principal activities”
• If the employee performs work during the commute, such as taking a conference call
• One-day projects or emergency calls where travel is required

Does This Apply to California?

Not necessarily. State-level rules often diverge from federal rules and, you may have guessed, California wage-and-hour laws are often much stricter.

Based on California DLSE guidance, compulsory travel that exceeds an employee's normal commute may be compensable, including additional travel time resulting from a temporary change in work location. California’s broader “hours worked” standard also considers whether the employee is subject to the employer’s control during the travel time. In the case of a hybrid employee, California employers should determine what is considered the employee’s “regular work site” and whether travel is required at the direction of the employer. If you do allow hybrid employees to commute to your worksite mid-day, be sure to document that it is voluntarily to benefit the employee.

Unsure if the arrangement you made with your remote worker triggers travel time? Give us a call. Members can access our Work from Home Policy on our HR Forms page. Reach out to us if you need assistance personalizing your travel time policy.