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When Does the Clock Start for Employees Working from Home?

Author: Ronald E. Lyons
Categories: Employment Law & Litigation

In today’s varied work environment, more and more employees are performing some type of employment related service from home. This triggers issues to determine when the compensable portion of the work day begins. If an employee reviews his work e-mails or remotely logs on to the company network from home before leaving for the office, does that action, by itself, initiate the work day? Similarly, if the employee makes or receives work-related cell phone calls from co-workers or clients during the commute, is that considered compensable activity? 

In the second circuit federal appeals court case of Kuebel v. Black & Decker Inc., the employee sued his former employer alleging that he was owed wages for time commuting between his home and job. The employee was a retail specialist responsible for product merchandising and marketing and assigned to six Home Depot stores located between 20 minutes to 3 hours from his home, by car. Since the employee worked from home rather than a central office, he clocked his work time via a company-provided device that he synched from his home computer.

The employee also performed other administrative-type tasks from home such as responding to company e-mails, checking voicemail, analyzing sales reports, organizing sales materials, preparing display signage taking online training courses and loading and unloading his car. Although the employee was paid for the time he spent on such activities, he argued that the performance of administrative duties at home prior to the beginning of his work day and, again, at the end of the work day should be the basis for determining his compensable hours.

The employee’s claim was based upon the “Continuous Work Day Theory.” The employee alleged that he was entitled to compensation for all the time because he believed that it was integral and indispensable to his principal job activity of driving to and from his home and the Home Depot stores.

The court disagreed citing the general rule from the Fair Labor Standards Act that it does not treat ordinary home-to-job-site travel as compensable. The fact that the employee performs some administrative tasks at home, on his own schedule, does not make his commute time compensable.

The court did, however, acknowledge that there may be situations where activity conducted at home or on the road does trigger FLSA compensation requirements. The activity must be “integral and indispensable” to a “principal activity”. Determining which activity is compensable is typically made on a case by case basis. Factors include an analysis of whether the work being performed at such time is mandatory and whether it is an integral and indispensable part of the employee’s job. By way of example, if the employer required the employee to call customers from home before leaving for the job site and to continue to make or receive calls on the way, that would more likely make the commute compensable. On the contrary, if the employee only needed to quickly check his schedule from home to pick up his job assignments for the day before beginning his commute, that would not likely be deemed compensable.

The court expressly noted the fact that the employee had flexibility in deciding when to complete his daily administrative responsibilities. Here, the employee had flexibility to decide when to perform such tasks and the mere fact that he chose to perform them at the beginning and end of his work day did not, by itself, make such time part of his continuous work day.

To help prevent such situations from developing, employers should consider implementing written policies affirming that employees are not required to perform activities at home at any specific time. While an employee may still be able to claim that he is entitled to compensation, use of such a policy may limit exposure and undermine the employee’s argument that such activities extend the work day to include travel time. Another option is to implement a policy stating that administrative work that cannot be accomplished during the regular work day may only be performed at home with the prior written approval of the supervisor.

Periodic review of your employee manual for compliance with federal and state laws can save your company a lot of time and money. For further information about this, please contact Ron Lyons at rlyons@mcmillanmetro.com.