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Employee’s Administrative Tasks Performed at home Outside the Coverage of the FLSA

An employee commuting from his home base to various worksites also completed work tasks at home in the mornings and evenings. The company compensated the employee for his home-to-work travel in excess of one hour. Although the company’s policy was for employees to record time spent on at-home tasks, the company expected employees to finish all their work tasks in a 40-hour week. The employee falsified his timesheets, failing to record his overtime work. When the employee was terminated, he sued alleging that the company failed to pay him for his commuting time and overtime work that he failed to report, in violation of the Fair Labor Standards Act (FLSA) and New York Labor Law. A federal trial court found no basis for employer liability and granted summary judgment to the employer. The U.S. Court of Appeals for the Second Circuit rejected the employee’s first argument, finding that his at-home work did not extend his workday under the U.S. Department of Labor’s “continuous workday” rule. Therefore, the court held that the fact that the employee chose to perform his at-home activities immediately before and after his commutes did not mean that the employer was required to pay him for the first hour of those drives, which was “time that was not part of his continuous weekday and that was, in the end, ‘ordinary home to work travel’ outside the coverage of the FLSA.” The U.S. Court of Appeals disagreed with the district court’s finding that the employer was entitled to summary judgment for unpaid overtime work that the employee admittedly failed to report, holding that a jury could reasonably find in the employee’s favor that the employer had actual or constructive knowledge of his off-the-clock work. The court was clear that, “where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets.” When dealing with employees who commute, employers must be mindful that tasks deemed “integral and indispensable” to an employee’s principal activities, but which the employee has flexibility in choosing when to perform, do not extend the employee’s workday under the “continuous workday” rule and thus are not compensable. Employers should also be aware that it is unlawful to direct an employee not to record overtime to avoid payment for hours actually worked by him or her.

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