Wednesday 6th January 2021
The US Department of Labor (DOL) issued two statements on the Fair Labor Standards Act (FLSA) on December 31, 2020. One of these letters deals with the travel time that occurs when employees make personal appointments during the working day and do some of their work remotely. The other deals with compensation schemes for domestic workers whose shift can go beyond 24 hours.
Both Opinion Letters were signed by Cheryl M. Stanton, DOL’s Payroll Administrator, WHD.
Travel time
Opinion letter FLSA2020-19 shows that not all travel times occurring during the working day can be compensated under the FLSA. This analysis also emphasizes the importance of the “off-duty” regulation of the DOL, 29 CFR § 785.16.
According to the so-called “doctrine of the continuous working day” “the period between the first and the last main activity of an employee of the day is generally compensated according to the FLSA”. This can upset employers if they fail to pay their non-released employees for the time they spend traveling to a construction site after doing other work, or out of a construction site before doing additional work.
However, according to an example given in the opinion letter, travel time home cannot be compensated if an employee receives permission from her employer to leave work early to attend a parent-teacher conference and then work at home after the regular working day home. If an employee asks permission to work from home the morning before going to a doctor’s appointment and then goes to the office to continue work, the travel time to the doctor’s appointment and then to the office cannot be compensated.
The DOL stated that the travel time spent in these examples is not travel from work to work. “The employer does not require the employee to travel as part of her job. Rather, she travels voluntarily in her free time for her own purposes, ”the opinion letter said. In addition, according to DOL, travel does not fall under the doctrine of the continuous working day, as it is a “off duty” time. “When an employee arranges for her working day to be divided into a block working at home and a block working in the office, separated by a block that is reserved for employees to use for their own purposes,” explained the DOL, “The reserved time is not subject to compensation, even if the employee uses part of this time to travel between home and office. “
DOL has kept the facts very simple in the examples discussed in this opinion letter. In both scenarios, employees had a one-hour drive to and from the office, and the total travel time to the appointments and to the home or office was one hour. Employees also applied for and were given permission to work at home part of the day to better suit their personal schedules.
The DOL stated that “[s]always [court] Decisions that may appear to the contrary analyze situations in which employees may have had to perform work immediately before commuting to or immediately after commuting from a construction site. “The examples presented in the opinion letter did not contain such a situation. The DOL found that a federal court “came to the conclusion that the travel time may be subject to compensation even if the employees do not have to work immediately before or immediately after their commute”, but found that this court did not provide the off-duty rule considered.
DOL’s approach to the examples in the opinion letter is in line with common sense and the concept that the rights of a worker need not conflict with the interests of an employer. If an employee applies for and is given time off for personal activities, travel to or from those personal activities need not be treated as compensation time by the employer. If an employee is able to work from home at any time of the day or night the employee wishes, the continuous work day doctrine is unlikely to apply. This opinion letter does not necessarily indicate a change in the law, but rather a clear attempt to clarify the compensable travel time if more employees work remotely.
Live-In Home Health Care
Opinion letter FLSA2020-20 deals with a salary plan for domestic workers who can work longer shifts of more than 24 hours. In this situation, the employer calculated in advance what the workers would get based on their planned days and hourly rate and a premium of 1.5 times their hourly rate for hours worked over 8 in a day or 40 in a week. In making these calculations, the employer assumed that the entire shift, with the exception of good-faith meal times and sleep breaks (up to eight hours), could be compensated. However, if the employees’ meal breaks or sleep breaks were interrupted for professional reasons, this time was recorded and resulted in an additional wage based on the hourly rate and the premium rate formula agreed by the employer and the employees.
The DOL saw this as an appropriate way to credit the employer with meeting its overtime pay obligations under the FLSA. Employees always received 1.5 times their regular hourly rate for their expected hours over 40 based on their schedules, and if they worked unexpected hours they were also paid 1.5 times their regular hourly rate.
Employers wishing to develop such a compensation plan are likely to want to confirm that the types of bonuses they pay can reasonably be used towards their overtime obligations. Otherwise, the pay plan could result in the employer owing additional overtime. For example, night shift bonuses, hazard payments, and many other types of wage bonuses usually need to be added to an employee’s total compensation for the work week to determine the employee’s regular pay rate for overtime purposes.
In addition, there are special rules regarding the exclusion of sleeping time for employees living in the apartment, while other special rules regarding the exclusion of sleeping time apply to employees who are not living in the apartment and who work shifts of 24 hours or more. As the DOL states in the opinion letter: “Employees who work shifts for less than 24 hours must not exclude any sleep time, even if they do [they are] is allowed to sleep during one shift. “As such, employers may want to consider not only the nuances involved in calculating the regular rate, but also what constitutes a compensable time for FLSA purposes.
© 2020, Ogletree, Deakins, Nash, Smoak and Stewart, PC, all rights reserved.National Law Review, Volume XI, Number 6
