FLSA2020-19 — Whether certain travel time occurring on a telework day is compensable under the FLSA

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210
FLSA2020-19
December 31, 2020
Dear Name*:
This letter responds to your request for an opinion on the compensability of certain travel time.
Specifically, you ask whether an employee who chooses to telework for part of the day and work
at the office for part of the day, with sufficient time to perform certain personal tasks in between,
must be compensated for travel time between her home and office under a number of different
scenarios. We conclude that the time the employee spends on travel in these scenarios is not
compensable.
BACKGROUND
You ask whether, under several different fact patterns, an employee who chooses to telework for
part of the day and work at the office for part of the day, while completing personal tasks in
between, must be compensated for certain intervening travel time. You give two examples to
illustrate these fact patterns. Both examples involve an employee with a one-hour commute to
and from her office who normally works Monday through Friday from 8:00 a.m. to 4:30 p.m.
The employee does not perform any work during her commutes.
In your first example, the employee has a parent-teacher conference at her child’s school from
1:30 p.m. to 2:15 p.m. She has received permission to attend the conference and then work from
home rather than returning to the office. She leaves her office at 1:00 p.m., drives 30 minutes to
the school, and meets with the teacher for 45 minutes; the travel time from the school to her
home is 30 minutes. You ask whether the time spent driving from the office to the school and
the school to home would be compensable depending on whether the employee:
•Immediately resumes working when she gets home;
•Devotes an hour to personal activities upon arriving home and then resumes working;
•Devotes two hours to personal activities upon arriving home and then resumes working;
or
•Devotes at least an hour to personal activities before driving home, devotes at least
another hour to personal activities upon arriving home, and then resumes working.
In your second example, the employee has a doctor’s appointment from 8:30 to 9:15 a.m. The
drive from her home to the doctor’s office is 45 minutes; the drive from the doctor’s office to the

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employer’s office is 15 minutes. The employee has received permission to work from home
before driving to her appointment and will work the rest of the day after the appointment at her
regular office location. You posit that the employee works at home from 5:00 to 6:00 a.m., is
free to perform personal activities between 6:00 and 8:00 a.m., leaves for her appointment at
8:00 a.m., finishes her appointment at 9:15 a.m., and arrives (and begins working) at her office at
9:30 a.m. At the end of the day, the employee commutes home from her office as usual, and
performs no work either during the commute or after she arrives home. You ask two related
questions:
• Is the employee’s one hour of travel time from home to the appointment and the
appointment to the office compensable?
• Is the employee’s commute time from her office to home, where she first began working
that day, compensable?
GENERAL LEGAL PRINCIPLES
The Fair Labor Standards Act generally requires that an employee be paid at least a federal
minimum wage for every hour that he or she works and be paid at one and one half times her
regular rate of pay for each hour worked in excess of 40 in a single workweek.
1
Whether an
employee is “working” typically can be answered by determining whether her action is primarily
for the benefit of the employer.
2
An employee does not need to be paid for hours that she is off
duty—that is, periods when she is completely relieved from duties and that are long enough to
enable her to effectively use the time for her own purposes.
3
Additionally, time an employee
spends in normal commuting or ordinary travel from home to work and vice versa—that is,
travel from home to work before the regular workday and travel from work to home at the end of
the workday—is specifically excluded from compensable hours.
4

“[I]n general, the period between the commencement and completion on the same workday of an
employee’s principal activity or activities” is considered compensable, a principle known as the
continuous workday doctrine.
5
An employee is generally not considered to be on duty, and the
continuous workday doctrine does not apply, until she has performed her first principal work
activity of the day—that is, her first task that is integral and indispensable to the duties that she
was hired to perform.
6
Unlike ordinary commuting time, travel that is part of an employee’s

1
29 U.S.C. §§ 206–207.
2
Tenn. Coal, Iron, & Rail Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944).
3
29 C.F.R. § 785.16(a).
4
29 C.F.R. § 785.35.
5
29 C.F.R. § 790.6(b); see IBP, Inc. v. Alvarez, 546 U.S. 21, 28 (2005).
6
Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 33 (2014).

3

principal activity, such as travel between different worksites between the start and the end of the
workday, is considered part of the day’s work and is compensable.
7

OPINION
Based on the facts you have provided, we conclude that the travel time you describe is not
compensable.
A. The employee’s travel time is not compensable because she is either off duty or engaged
in normal commuting.
In your first example, the employee’s travel time once she leaves the office is non-compensable
off-duty time. Between the employee’s leaving work at 1:00 p.m. and her resuming work at 2:45
p.m. at the earliest, her time is hers to do with as she pleases—she is no longer performing
compensable work for the employer. This remains the case whether she is traveling to a personal
appointment, traveling from a personal appointment, having personal meetings, or performing
other personal activities. Though the off-duty regulation speaks of an employee who has been
“definitely told in advance that ... [she] will not have to commence work until a definitely
specified hour,”
8
it applies with equal force here, where the employee may freely choose the
hour at which she resumes working. There is no question that such an employee is free to use
her time effectively and for her own purposes before resuming work.
9

We reach a similar conclusion regarding your second example: None of the employee’s travel
time is compensable. The hour that the employee spends performing the principal duties of her
job for the employer beginning at 5:00 a.m. is compensable work, just as it would be if the
employee had performed that work at the office. But at 6:00 a.m., she is off duty—she has a
block of time to use effectively and for her own purposes. Her time remains noncompensable
until she reaches the office and resumes working at 9:30 a.m. Finally, her commute from her
office to her home following the conclusion of her workday is an ordinary work-to-home
commute and is not compensable.
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B. The travel time is not compensable as worksite-to-worksite travel or under the
continuous workday doctrine.
In neither example do we consider the travel between the employee’s home, the personal
appointment, and the employer’s office to be compensable travel between worksites or to be
compensable as a result of the continuous workday doctrine.

7
29 C.F.R. § 785.38.
8
29 C.F.R. § 785.16(a).
9
Id.
10
See 29 C.F.R. § 785.35.

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First, the travel time is not compensable worksite-to-worksite travel. Travel time must be
counted as hours worked when it is part of an employee’s principal activity, such as travel from
worksite to worksite during the work day.
11
But that is not what this travel is. The employer is
not requiring the employee to travel as part of her work; rather, she is traveling of her own
volition for her own purposes during her off-duty time.
Similarly, the travel time here is not compensable under the continuous workday doctrine
because, as explained above, it is off-duty time. Our regulations contemplate that the period
between an employee’s first and last principal activities will “in general” be compensable.
12
But
they also explicitly state that when an employee is completely relieved from duty such that she
can use time effectively for her own purposes, that time is non-compensable.
13
As we have
observed, the FLSA “recognizes that employment is a relationship both parties enter into for
their mutual benefit,” and, as such, “‘employees’ rights ... are not always separate from and at
odds with their employers’ interests.’”
14
When an employee arranges for her workday to be
divided into a block worked at home and a block worked at the office, separated by a block
reserved for the employee to use for her own purposes, the reserved time is not compensable,
even if the employee uses some of that time to travel between home and the office.
Courts generally have reached the same conclusion when analyzing similar questions. For
example:
• An employee’s morning and evening commutes were not compensable, even though he
performed various administrative tasks at home, when he was not required to perform
such tasks immediately before leaving home or immediately after returning home. He
instead was free to “wake up early, check his email, synch his PDA, print a sales report,
and then go to the gym, or take his kids to school, before driving to his first” worksite of
the day. And he similarly was not precluded from “leaving his last [site] of the day and
going straight to a restaurant for dinner, or waiting until late at night to synch his PDA (as
electronic records show[ed] he sometimes did).”
15

• A traveling alarm installer’s evening commute time was not compensable, even though
he was required to upload data to a central work computer after finishing his last
assignment of the day, where the only requirement was that he upload the data “any time
between 7:00 p.m. and 7:00 a.m.” and he was otherwise “completely relieved from duty”

11
29 C.F.R. § 785.38.
12
29 C.F.R. § 790.6(b); see also id. §§ 785.18–.19 (discussing rest periods and meal times).
13
See 29 C.F.R. § 785.16.
14
WHD Opinion Ltr. FLSA2020-16 (Nov. 3, 2020), quoting Sec’y of Labor v. Bristol Excavating, Inc., 935 F.3d
122, 135 (3d Cir. 2019).
15
Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011).

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and could use the time after his last installation of the day “effectively for his own
purposes.”
16

•Investigators’ commute time was not compensable, even though they were required to
complete some preliminary work before leaving home for a surveillance site and to
upload reports after completing the day’s surveillance, where they could do the
preliminary work the night before (and sometimes even earlier) and upload the reports at
any time until the following morning. That they were “not required to perform these
activities ‘at any specific time’” meant that they could “‘use the intervening time for
[their] own purposes’” and their commuting time was thus not compensable.
17
•A
retail representative’s commute time was not compensable, even though she
“undoubtedly perform[ed] some preparatory and administrative work at home, because
she [was] able to perform these tasks from any number of locations and [was] free to
schedule her time so as to ‘use the time effectively for [her] own purposes[.]’”
18
Several decisions that may appear to be to the contrary analyze situations in which employees
were potentially required to perform work immediately before commuting to or immediately
after commuting from a work site.
19
Because you inform us that the employee is not required to
perform her work at any particular time, we are not opining as to such a situation. One court
concluded that travel time may be compensable even if the employees were not required to
perform work immediately before or immediately after their commute, but that opinion, unlike
the four we cite above, did not consider the off-duty regulation—and its reasoning on this point
does not appear to have been followed by any other courts.
20

As the Garcia v. Crossmark court summarized, our conclusion that the employee’s travel time is
not compensable “follows inexorably” from the regulations. If “taken to its logical conclusion,”
the proposition that the travel time is compensable:
would demand that had [an employee] elected to prepare her materials every
morning at four, rather than six, and then return to sleep before leaving for the
16
Rutti v. Lojack Corp., 596 F.3d 1046, 1060 (9th Cir. 2010), quoting 29 C.F.R. § 785.16.
17
Ahle v. Veracity Research Co., 738 F. Supp. 2d 896, 917 (D. Minn. 2010), quoting, with alterations, Rutti, 596
F.3d at 1061, and citing 29 C.F.R. § 785.16(a).
18
Garcia v. Crossmark, Inc., 157 F. Supp. 3d 1046, 1049 (D.N.M. 2015), quoting 29 C.F.R. § 785.16 (alteration
in quotation in original).
19
See Gomley v. Crossmark, Inc., No. 1:13-cv-420, 2015 WL 1825481, at *4 (D. Idaho Apr. 22, 2015); Harris
v. Reliable Reports Inc., No. 1:13-cv-210, 2014 WL 931070, at *5 (N.D. Ind. Mar. 10, 2014); Bowman v.
Crossmark, Inc., No. 3:09-cv-16, 2012 WL 2597875, at *8 (E.D. Tenn. July 5, 2012).
20
Dooley v. Liberty Mut. Ins. Co., 307 F. Supp. 2d 234, 244–45 (D. Mass. 2004) (considering 29 C.F.R.
§§ 785.35 and 790.6 but not 29 C.F.R. § 785.16).

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day, she would be entitled to compensation for the time she spent unconscious....
It simply cannot be the case that an employee is empowered unilaterally to
convert her commute into compensable time merely by deciding to perform her
daily routine in a particular manner.
21

CONCLUSION
For these reasons, we conclude that when an employee (a) chooses to perform some work before
traveling to the office or (b) chooses to perform work at home after leaving the office, and in
either case has sufficient time in between her telework and office work periods to use effectively
for her own purposes, the time she spends traveling between home and office is not
compensable.
This opinion is based exclusively on the facts you have presented and on your representation that
you do not seek this opinion for a party that WHD is currently investigating or for use in
litigation that began before your request. This letter is an official interpretation by the
Administrator of WHD for purposes of the Portal-to-Portal Act. This interpretation may be
relied upon in accordance with section 10 of the Portal-to-Portal Act, notwithstanding that after
any such act or omission in the course of such reliance, the interpretation is “modified or
rescinded or is determined by judicial authority to be invalid or of no legal effect.”
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We trust that this letter responds to your inquiry.
Sincerely,
Cheryl M. Stanton
Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C.
§ 552(b).
21
157 F. Supp. 3d at 1049–50.
22
29 U.S.C. § 259(a).