On July 22, 2026, the Department of Labor’s Wage and Hour Division issued two opinion letters addressing how the Fair Labor Standards Act applies to non-exempt employees who perform work tasks at home before commuting to the office or client sites. Wage and Hour Division Administrator Andrew Rogers explained that the two new letters are intended to offer “comprehensive guidance” that let employers “confidently make informed decisions regarding a wider variety of employee work arrangements” while “ensuring that workers are properly compensated for all hours worked.”
The Opinion Letters:
FLSA2026-9 analyzes whether an employee who splits a single workday between home and the office – performing work at both locations – must be paid for the mid-day travel when that travel is offered as a voluntary alternative to the unpaid commute that would otherwise occur before or after the workday. Three scenarios were presented in which non-exempt employees voluntarily changed the timing of their commutes for their own convenience – either to avoid rush-hour traffic, to perform extra work at home before leaving for the office, or to finish assigned work at home after catching the last bus.
The DOL concluded that – notwithstanding the general “continuous workday” doctrine presumption that once the workday starts, all activity is ordinarily compensable until the workday ends – such mid-day commutes are not compensable because they are “normal incidents of employment.” In reaching this result, the DOL applied the common principle that time is “work” only when spent predominantly for the benefit of the employer. Accordingly, an employer’s grant of flexible, mid-day commuting permissions for the benefit of employees does not, by itself, obligate the employer to pay for commutes merely because they occur in the middle of the workday.
Importantly, the DOL clarified that nothing in the letter should be construed as a departure from the Department’s longstanding position that (1) travel from worksite to worksite during the workday is compensable, and (2) if an employee is engaged in compensable work during a commute, time engaged in such tasks is compensable.
FLSA2026-10 analyzes whether a field employee with no fixed worksite, who receives work assignments electronically at home – and then coordinates with clients and coworkers to schedule appointments before driving directly to the first appointment – must be compensated for such activities and for the ensuing drive.
The DOL determined that the brief time spent merely receiving assignments electronically is not compensable because it is “incidental” and a “minor consequence” to the use of an employer-provided vehicle for commuting under the Employee Commuting Flexibility Act. By contrast, the DOL concluded that the time spent speaking with clients and other field employees to schedule and arrange service details is compensable, because those tasks are “integral and indispensable” to the employee’s principal activities and primarily benefit the employer rather than being incidental to the commute only.
Applying a totality of the circumstances approach, the DOL further concluded that where the employer requires the employee to perform substantial work contacting clients throughout the hour before or during the drive, leaving little freedom and flexibility indicative of an “ordinary” commute, the travel to the first worksite is compensable. The letter also noted that where such pre-travel work time is difficult to measure, an employer and employee may adopt a “reasonable agreement” to ensure fair compensation for those hours.
Both letters turn on the same core distinction – that an ordinary home-to-work commute is generally not compensable, but travel that is integral to work already underway or that displaces an otherwise compensable activity, may cross the line into compensability.
Practical Takeaways:
For employers with a hybrid and mobile workforce, these letters are particularly helpful on a recurring compliance pain point – whether employee travel during the workday is compensable. In response to the newly-issued DOL letters, it is critically important that employers:
- Maintain clear, written policies documenting the intended start of the workday and defining categories of compensable work time for hybrid and mobile workers. The DOL now validates that such policies can lawfully reflect that entirely voluntary, mid-day commutes will be classified as unpaid ordinary commutes incidental to employment.
- Require that non-exempt employees accurately track all working time performed before, during, and after commutes or travel time. Where pre-travel work tasks are variable and difficult to measure, employers should consider a written, “reasonable agreement” to account for a fair estimate of the time worked.
- Periodically audit timekeeping and pay practices for hybrid and mobile employees to confirm that all compensable work time is being captured accurately and mid-day commute time is being classified correctly.
- Consider using available DOL resources, including the PAID self-audit program, to proactively self-report and resolve identified compensation issues, minimizing future risk and liability.
Although the opinion letters are official interpretations meant to aid employers in avoiding liability, given the fact-intensive nature of these determinations, employers are also encouraged to consult with counsel for tailored advice on compensability issues. The employment attorneys at Poyner Spruill monitor DOL/WHD opinion letters closely and are available to assist with wage and hour inquiries as they arise.
