On July 22, 2026, the U.S. Department of Labor (DOL) issued two new opinion letters addressing how the Fair Labor Standards Act (FLSA) applies to nonexempt employees’ commuting time when they work part of their workday at home.
First, in Opinion Letter FLSA2026-9, the DOL considers whether midday travel between an employee’s home and their workplace was compensable when the employee performs work at both locations and the midday travel is a voluntary option that the employer offers for schedule flexibility.
In the letter, the employer has a large workforce of nonexempt employees who do not regularly travel as part of their job duties, other than their normal commute to and from work. The employer allows many employees to work remotely from home when business needs permit but doesn’t allow employees to work in more than one location in a single workday. To permit more flexibility, the employer is considering allowing nonexempt employees to split their workdays between home and office and so, asked the DOL for its opinion on whether the home-to-work travel would be compensable in the following scenarios:
- Scenario 1: A nonexempt employee is scheduled to work from 9 a.m. to 5 p.m. and typically commutes to work from 8 a.m. to 9 a.m. and home from 5 p.m. to 6 p.m. The employee requests to shift their commute time to off-peak hours. In both arrangements, the employee takes a 30-minute lunch period regardless of location and works a normal schedule of 7.5 hours. The shifted schedule would be:
- Beginning work at home at 8 a.m.;
- Commuting to the office between 10 a.m. and 10:30 a.m.;
- Working in the office until 3 p.m.;
- Commuting back home; and
- Finishing their work at home from 3:30 p.m. to 5:00 p.m.
- Scenario 2: A nonexempt employee volunteers to work additional hours for a special project, requesting to work those hours early in the morning at home before commuting to the workplace for the regular shift.
- Scenario 3: A nonexempt employee uses the city bus to commute to and from work and is unable to complete work before the last bus leaves for the day. The employee asks for permission to bring the work home and complete it there, with overtime hours.
In all three scenarios, the DOL concludes that the midday travel qualifies as “normal” or “ordinary” commuting travel, which is not compensable hours worked under the FLSA. The DOL’s conclusion rests on the principle that time counts as “hours worked” if it primarily benefits the employer.
Ordinary commuting time is a normal incident of employment and primarily benefits the employee by allowing them to live where they choose. As such, it is not considered “hours worked” under the FLSA. Compensable travel time, on the other hand, is time spent by an employee traveling as part of their principal job activities.
According to the DOL, though commuting typically takes place before or after an employee’s regular workday, “otherwise-ordinary travel between home and work does not become worktime simply because it occurs during the workday — that is, at some point in between an employee’s first and last ‘principal activities.’” In all three scenarios, the employer’s flexible midday commuting option remains an “ordinary” commute, primarily benefits the employees and does not count as hours worked under the FLSA.
The DOL clarifies, however, that nothing in its opinion departs from the longstanding position that:
- Travel from worksite to worksite during the workday is compensable; and
- If an employee is engaged in compensable work during commute time, the time spent performing such tasks is compensable.
Those situations do not constitute “ordinary” commuting. Additionally, the DOL clarifies that there are circumstances in which home-to-work travel can be compensable, i.e., not “ordinary,” including where the travel and timing are dictated by the employer and imposes constraints predominantly for the employer’s benefit.
In its second letter, Opinion Letter FLSA2026-10, the DOL addresses the issue of when pre-shift activities and commuting time may become compensable under the FLSA. The letter examines a situation where an employee works as a field service engineer responsible for installing and servicing magnetic resonance imaging (MRI) systems. The employee performs these services at clients’ locations. Each day, the employee drives from home to the first client appointment, from job site to job site, and then home after the last appointment.
The employee’s regular shift starts at 8 a.m., but between 7 a.m. and 8 a.m., the employer sends the employee client service requests through the employer’s internal paging/messaging system. The employee takes approximately 15 seconds to accept each page and then calls each client to set up appointments, with each call taking five to 10 minutes. The employer doesn’t pay for this time. In some instances, the employee receives the client service requests while still at home. In others, the employee is already driving to a client location during that time and receives the requests and makes calls while driving.
The DOL concludes that the time spent merely receiving assignments electronically is not compensable — whether performed at home or during the commute — under the federal Employee Commuting Flexibility Act (ECFA). Under the ECFA, use of an employer-provided vehicle for travel before and after the workday, and activities incidental to the use of that vehicle, are not considered principal activities under the FLSA. The DOL determines that receiving service requests is likely incidental to the use of the employer’s vehicle.
Time spent on the phone with clients and other field employees, however, is compensable because those tasks are required by, and primarily benefit, the employer. Additionally, they are part of the employee’s primary job duties, not simply incidental to the use of the vehicle.
The DOL also determines that when the employee completes the calls at home and then drives to the client’s location, the drive time is compensable in this situation. Looking at the totality of the circumstances, the DOL finds that the drive time is not an “ordinary” commute because both the time and manner of the travel are based primarily on the employer’s needs, rather than the employee’s choice, and the employer requires substantial work immediately before and after traveling.
Lastly, in the scenario where the employee leaves home early to go to a client’s location and doesn’t make any calls until they are commuting, the workday begins with the first call the employee makes, making the drive after that point compensable, while the portion of the drive prior to the first call is an ordinary commute.
The DOL’s opinions may be helpful to employers with hybrid work arrangements in which nonexempt employees commute between home and the office during the workday. Keep in mind that these opinions are not binding on courts, but they do illuminate the agency’s enforcement position on the FLSA’s application.
These opinions may also be helpful to California employers with hybrid working arrangements involving nonexempt employees. Though the DOL’s opinions are specific to the FLSA, California law governing commuting and travel time is similar to federal law. Under California law, commuting time is generally noncompensable. As with the FLSA, however, if an employer exercises enough control over the commute, like controlling the mode of transportation or requiring the employee to perform work during that time, the commute may constitute hours worked.
California, however, tends to be stricter than federal law, for example, when it comes to:
- Employer-mandated travel: Requiring an employee to report to a location other than the normal worksite that goes beyond their normal commute.
- Required use of employer-provided transportation: Requiring the employee to use a particular mode of transportation (such as a company car or shuttle) instead of their own vehicle.
- Employer control during the commute: Subjecting the employee to certain policies or rules while commuting.
In general, courts are more likely to find that these circumstances turn commuting time into compensable “hours worked” under California law.
Employers with flexible hybrid work arrangements should review split-day practices to ensure that midday commutes are voluntary and primarily benefit the employee, and that any such time is free of work during travel. California employers should do so through the lens of California’s stricter wage-and-hour laws and consult legal counsel if they are uncertain whether the commuting time under their practices is compensable.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
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