The opening sentence of Section 785.36 currently says, "There may be instances when travel from home to work is OVERTIME [emphasis added]." I submit that the sentence should conclude with the word "worktime", as it did for many years.
My research has not disclosed why or exactly when the change from "worktime" to "overtime" occurred. So far as I have been able to determine, "worktime" was used in and before 1971, but the term "overtime" began to appear in 1972. I have located no advance notice of proposed rulemaking or any other administrative notice or procedure through which this change was proposed or adopted, either during the 1971-72 timeframe or at any other time. I suspect that the wording was modified simply as the result of a scrivener's error or through a misunderstanding, but in any case it should be stated in the correct form.
Obviously, the Labor Department and experienced practitioners understand that emergency travel constituting worktime counts as FLSA overtime only insofar as it occurs after the employee has worked 40 hours in a workweek. However, nowadays there are many litigants, counsel, and courts who are not conversant with these principles. Consequently, misstatements such as this can lead to needless confusion, complication, and disputes.
If for some reason the Labor Department's view is that the provision is correct as it stands, then I ask that you identify the rationale for and details of why this is the case and how it was accomplished consistently with the dictates of applicable administrative procedures.