Ask The Lawyer By: Daniel A. Gwinn, Esq – Taking it Too Far?

TAKING IT TOO FAR? WORKER WANTS PAY FOR TRAVEL TIME FROM HOME OFFICE TO PHYSICAL OFFICE

QUESTION:  Since March, the company I work for has asked those who can to work from home as much as possible. Over time, my home office has become my principal place of business. I can, and do, handle all my work from home. On occasion, I am asked to come to the physical office to meet with a client (masks on) who is uncomfortable meeting via Zoom. I included my travel time in my hours. My boss says travel from home, even if I work there, is a normal commute and unpaid. I say this is the same situation as when I used to get paid to drive from our principal office to a satellite office in another town.

ANSWER:     The federal rules regarding what kind of travel time is compensable under the Fair Labor Standards Act say that time spent in travel as part of a workers “principal activity, such as travel from job site to job site during the workday” must be counted as hours worked, 29 C.F.R. 785.38.

According to your logic, you are traveling from one job site (your home) to another (the office) during the workday, so you should be paid for it. While the argument makes sense, Courts typically have not been friendly to it.

For example, in a Kuebel v Black and Decker, a New York case, the Second Circuit Court held that an employee should not get paid for morning and evening commutes, although he did some work at home, where he did not have to perform that work right before or right after his commute to the office. Instead, the Court said, he was free to “wake up early check his email, synch his PDA, print a sales report, then go to the gym or take his kids to school” before driving to the work site.

This focus on an employee’s discretion to control whether the work performed at home was performed as part of the workday was the controlling factor in other cases as well. Where the “at-home” work could be done before or after the start or end of the workday, the travel time to the work site was unpaid.

Not all Courts have followed this reasoning. In a 2015 case out of Idaho, for example, the Court found that a worker should have been compensated for her travel time where there was evidence that the employee was required to perform administrative tasks at home immediately before starting her morning commute.

Your claim for travel time pay for driving to a physical office from your home office will be greater if (1) you are required to maintain a set work schedule while working at home (from 9 to 5, for example); and (2) client meetings are scheduled after the work day has begun and before it has ended. The more flexibility you have to set your hours, the less likely it is that your travel time to the physical office from your home office will be viewed as paid travel time.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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