New DOL guidance addresses when commute time and pre-shift tasks are compensable
Commute time generally isn’t compensable under the FLSA, even when an employee does some work before or after driving. Two DOL opinion letters clarify the line: a hybrid employee’s mid-day commute isn’t paid when it primarily benefits the employee, while a field service engineer’s drive may be paid once work calls begin the workday.
The U.S. Department of Labor (DOL) Wage and Hour Division (WHD) issued two opinion letters on July 22, 2026, addressing how the Fair Labor Standards Act (FLSA) applies to employee travel time in modern work arrangements.
Together, the letters provide helpful guidance for employers managing hybrid office employees, field service employees, and other nonexempt workers who perform some duties before, during, or after commuting.
Is mid-day travel compensable for hybrid or split-shift employees?
In Opinion Letter FLSA2026-9, the DOL considered whether a nonexempt hybrid or split-shift employee’s mid-day travel between their work and home offices is compensable worktime.
The employer seeking guidance was considering whether to allow employees to split their workday between home and the office so the employees could avoid rush hour traffic, work additional hours from home before commuting, or take work-home after leaving the office. In the specific example presented by the employer, splitting the workday to avoid rush hour cut the employee’s commute in half.
The DOL concluded mid-day travel under those circumstances was “normal” or “ordinary” commute time and therefore not compensable.
The agency explained that ordinary commute time doesn’t necessarily become paid work time merely because the employee performs work before or after the commute, so long as:
- the travel isn’t part of the employee’s principal job duties;
- the employee isn’t performing work while traveling; and
- the arrangement primarily benefits the employee.
The DOL emphasized that allowing the employee to split their workday to avoid rush hour traffic primarily benefits the employee.
When do work communications before a commute start the workday?
In Opinion Letter FLSA2026-10, the DOL addressed when compensable time begins for an employee who receives or engages in certain work communications before their commute.
The scenario presented involved a field service engineer who drives from home to client locations in a company vehicle. Before or during their commute, the employee receives service requests through an employer paging system. The employee also calls clients to schedule appointments and coordinates with other field service engineers before or during the drive to the first client site.
In assessing when the workday began, the DOL distinguished between merely receiving assignments and actually performing work. It explained that receiving pages isn’t compensable because it was minimal and incidental to the employee’s use of an employer-provided vehicle for commuting.
On the other hand, time spent calling clients to schedule appointments or coordinating with other engineers was compensable because those activities were primarily beneficial to the employer and were essential to the employee’s principal work of servicing equipment for clients.
This distinction matters for the commute because client calls likely begin the workday, while receiving pages doesn’t. Accordingly, time spent commuting after client calls have begun is more likely to be compensable, and the question becomes whether the commute is “ordinary” versus compensable travel.
Unlike the scenario involving hybrid employees, the service engineer’s commute was likely compensable because the engineer didn’t have flexibility or freedom in terms of the mode of transportation, choice of departure time, and the ability to spend time on personal tasks before or during travel.
The DOL cautioned that this is a fact-intensive conclusion that depends on the nature of the client calls and the amount of time spent on those calls before or during the commute. It further explained that when time spent at home on work activities such as client calls varies considerably, employers and employees may use a written mutual agreement to determine compensation for such time.
What should employers take away from the guidance?
Whether nonexempt employees’ communication outside the workplace or commute time during the workday is compensable is a fact-specific inquiry that requires careful consideration.
Getting this wrong carries a defined lookback. Under 29 U.S.C. § 255(a), employees have two years to bring a claim for unpaid wages or overtime, and three years if the violation was willful. Under 29 U.S.C. § 216(b), a successful claim can include liquidated damages equal to the unpaid wages, though a court may reduce or deny them if the employer acted in good faith.
The recent guidance from the DOL provides helpful lessons on what kinds of communications or commute time may be compensable:
- Work communications at home aren’t likely to be compensable if they are minimal and incidental to the job, like merely receiving scheduling notifications.
- Work communications such as client calls before or during a commute are likely compensable if they are necessary to the employee’s principal job duties.
- Even if it occurs during the workday, commute time likely isn’t compensable when the employee doesn’t perform work during the commute and has flexibility in terms of the mode of transportation, when to leave, and whether to perform personal tasks.
- Mid-day commute time likely isn’t compensable if offered for the benefit of the employee, like splitting a shift to avoid rush hour, as long as the employee isn’t working during the commute and travel isn’t part of the job duties.
- Careful attention is needed when compensable communications outside the workplace vary in terms of frequency and length, and you should consider written agreements to ensure all compensable time is paid.
Frequently asked questions
Does a hybrid employee’s mid-day drive home count as paid time?
Generally no. In Opinion Letter FLSA2026-9, the DOL concluded that mid-day travel between the office and a home office is ordinary commute time when travel isn’t part of the employee’s principal duties, the employee isn’t working while traveling, and the arrangement primarily benefits the employee.
Does taking a work call before the commute make the drive compensable?
It can. Client calls that are essential to an employee’s principal work likely begin the workday, so commute time after those calls is more likely to be compensable. The DOL called this a fact-intensive conclusion that depends on the nature of the calls and how much time they take.
Is receiving work pages or notifications at home compensable?
Not on its own. The DOL explained that receiving service requests through an employer paging system isn’t compensable because it was minimal and incidental to the employee’s use of an employer-provided vehicle for commuting. Actually performing work, such as calling clients, is treated differently.
Can employers use a written agreement to handle variable at-home work time?
Yes. The DOL explained that when time spent at home on work activities such as client calls varies considerably, employers and employees may use a written mutual agreement to determine compensation for that time. The guidance recommends attention where such communications vary in frequency and length.
