When does the workday begin? When does it end? 

These were among the questions that the Second Circuit addressed and resolved in an important wage & hour decision last week. The case, Kuebel v. Black & Decker, can be downloaded here.

The court held that an "employee’s commuting time is not compensable as part of his ‘continuous workday,’ even if he performs work-related tasks before commuting to work in the morning or after arriving home at night."  (H/T Wage & Hour Litigation Blog).

The case tries to resolve one issue that has been popping up which is how to deal with an employee who perhaps checks their smartphone at home, even though they are not required by their employer. Does that start the clock running on the "continuous workday" to make everything else (including commuting time) included?  Or is that time just compensable on its own? 

The Second Circuit suggests no:

The general rule, however, is and always has been that the FLSA does not treat ordinary home-to-job-site travel as compensable. The regulations have reflected this fact for at least fifty instructing that “[n]ormal travel from home to work is not worktime.” 29 C.F.R. § 785.35; 26 Fed. Reg. 190, 194 (Jan. 11, 1961). The fact that Kuebel performs some administrative tasks at home, on his own schedule, does not make his commute time compensable any more than it makes his sleep time or his dinner time compensable.

Even though the employee may save some of his work to perform later does not save his wage claim:

Similar reasoning applies here, as it cannot seriously be disputed that Kuebel had flexibility in deciding when to complete his daily administrative responsibilities of checking email, checking voicemail, synching his PDA, printing sales reports, making signs, and so forth. The record indicates only that it might have been necessary to perform certain activities in the morning, or in the evening. It does not indicate that Kuebel was required to perform them immediately before leaving home, or immediately after returning home.

Indeed, there is nothing in the record to suggest that a Retail Specialist could not, for example, 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 Home Depot store of the day; nor was Kuebel prevented from leaving his last store 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 he sometimes did). That Kuebel may have frequently chosen to perform his at-home activities immediately before and after his commutes does not mean that B&D must pay him for the first hour of those drives—time that was not part of his continuous workday and that was, in the end, “ordinary home to work travel” outside the coverage of the FLSA, 29 C.F.R. § 785.35.

But the case isn’t a full victory for the employer. The court revived a class action on unpaid overtime claims finding that the employees were entitled to have a jury decide on the number of unpaid hours the employee is due.  And it leaves open the question as to whether the employee must still be paid for time worked when he was "off-the-clock". 

For employers, this case continues to emphasize that employers should maintain a strong policy prohibiting non-exempt workers from doing work "off-the-clock" or "at home" without supervision. And employers will be given some flexibility that an occasional performance of work while at home won’t automatically convert the employee’s commute into part of the workday.