A recent memo from the Federal Office of Personnel Management has raised new questions for the private sector.
New Federal guidance:
On Aug. 22, 2023, the Federal Office of Personnel Management issued guidance regarding whether the Fair Labor Standards Act requires federal workers to be compensated for their commute to work. This new guidance also included additional rules about federal teleworkers regarding pay and hours. The bottom line: it depends on whether a worker is categorized as a remote worker, hybrid worker or a teleworker and when the commute happens.
Note that this guidance applies only to hourly employees, not those who are salaried and considered exempt (exempt from overtime under the Fair Labor Standards Act).
Can hybrid workers be entitled to pay for commute time?
Under federal law, ‘commute time’ is not compensable under the Fair Labor Standards Act [FLSA]. This is settled law—however, with many workers now categorized as remote, hybrid or teleworkers—new commuting scenarios demand updated rules.
The crucial question: Did work start before the commute time?
- Example 1: Getting in a car and driving to work is obviously a form of commuting—thus does not qualify for pay. But what if the employee opens a laptop and spends an hour responding to early morning emails before driving to work? Under federal law, the drive to work time may now qualify for compensation because the travel occurs in the middle of the workday.
- Example 2: What if the employee commutes to work on a bus, train or commuter rail, enabling them to work on their laptop while in transit. If so, the employee may be compensated for this work time.
The most important principle in deciding whether time spent traveling is ‘commute time’ is whether the workday has already started.
Defining Employees as a Remote Worker or a Hybrid Worker is key.
Making matters more complicated, the answer to compensation for travel time may turn on whether you categorize your employee as a Remote Worker or a Hybrid-Remote Worker. Compensation might be considered if the employee’s worksite for the day is their home and whether it was the employee’s choice to go to the office or if their presence was required.
If work in the office is required, then official work time should not officially start until the employee reaches the office. Employers should exercise caution in allowing non-exempt employees to start their workday at home if they are also required to travel to a work location that same day.
Confused? Ask Cardinal!
As this article reveals, employers will soon need to include a Compensation Policy for Employee Commuting for their remote or hybrid employees. Compensation for travel time may vary by state law, and it is recommended employers consult with local counsel to craft an appropriate policy. While this area of labor law is still evolving, there is enough current guidance to stay compliant with FSLA requirements. Call Cardinal and ask to speak to one of our HR Specialists if you have questions or wish to create an HR policy regarding commuting compensation. We’re here to help!