30 MARCH / APRIL 2021 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Teleworking arrangements drastically increased as a result of the COVID-19 pandemic and are likely to continue, raising a number of thorny issues. One issue is whether travel time between the office and telework locations is compensable under the Fair Labor Standards Act. The FLSA sets standards for minimum wage and overtime for nonexempt employees. The FLSA requires employers to pay nonexempt employees for all hours they “suffer or permit” an employee to work. In other words, if an employer requires or allows an employee to work, the time is generally considered hours worked and must be paid. Any time spent in physical or mental exertion controlled by an employer and primarily for the benefit of the employer and its business must be paid in accordance with the minimum wage and overtime requirements of the FLSA, as well as applicable state wage and hour laws. An employee does not need to be paid for hours that the employee is “off duty” – meaning periods of time when the employee is relieved from work duties and the period is long enough for the employee to use the time for personal activities. Furthermore, an employee does not need to be paid for normal commuting time – the time spent by an employee in ordinary commuting time from home to work and from work to home before and at the end of the workday. Note: Unlike ordinary commuting time, travel that is required or is part of an employee’s principal activity, e.g., travel between worksites during the workday, is compensable. Teleworking and Travel Time Do employers need to pay? But what about travel time for an employee who works in the office for part of the day and also teleworks for part of the day? The administrator of the Wage and Hour Division of the U.S. Department of Labor published an opinion letter at the end of 2020 on the issue, concluding that travel time in this situation is not compensable. An opinion letter is an official statement of DOL policy – in response to a request from a person or entity – about how the Division applies the law it enforces in the specific circumstances presented by a person or entity. In FLSA2020-19, the DOL indicated that employees who choose to telework part of the day and work in the office for part of the day, and who have sufficient time in between to perform personal activities, need not be paid for travel time between the office and the teleworking location. Two scenarios were presented to the DOL for consideration. In both scenarios, the employee was a full-time employee who had an hour commute to and from the office and did not perform any work during the commutes. The scenarios were as follows: • Employee has a parent-teacher conference in the middle of the workday. With permission from the company, she leaves the office early, attends the conference, then goes home to complete her workday in her home office. The travel time from the office to the school was 30 minutes. The travel time from the school to her home was 30 minutes. • Employee has a midmorning doctor’s appointment. With permission from the company, the employee
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