DOL Updates
DOL Issues New Opinion Letters on Compensable Commute and Travel Time
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APPLIES TO All Employers |
EFFECTIVE JUL 22, 2026 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion
On July 22, 2026, the Department of Labor’s (DOL) Wage and Hour Division (WHD) issued two companion opinion letters addressing when an employee’s commute and pre-shift activities count as compensable “hours worked” under the Fair Labor Standards Act (FLSA).
Both letters apply the same underlying framework, built on a few established concepts. Time is compensable if it primarily benefits the employer, based on the full circumstances involved. Once an employee begins a required work task, the workday generally continues until the last required task ends. And while an ordinary commute and other preliminary tasks are normally excluded from paid time, any activity that is essential to performing the job remains compensable, regardless of when it occurs.
While not binding law and typically tied to specific fact patterns, these opinion letters reflect the agency’s interpretation and provide insight into potential enforcement strategies. Key takeaways from each are summarized below.
FLSA2026-9 | Midday Commuting Under Split Schedules
An employer asked whether allowing employees to split their workday between home and the office would make the midday commute between locations compensable. Specifically, the employer described three scenarios: an employee who shifts her commute to off-peak hours to cut drive time, an employee who volunteers to do extra early-morning work at home before driving in, and an employee who catches the last available bus home and finishes assigned work there. In each scenario, the employee was fully relieved of duties during the travel.
The WHD began with the settled rule that an ordinary home-to-work commute is a normal incident of employment that primarily benefits the employee and has never been treated as work. Applying this analysis to the three scenarios, the WHD found each commute ordinary and noncompensable. A midday commute does not need to reduce total drive time or be paired with a personal errand to remain “ordinary.” It is enough that the timing is genuinely voluntary and primarily benefits the employee. Performing compensable work at home before or after the drive does not, by itself, convert the commute into work time. The at-home work is paid, but the surrounding travel is not, so long as the employee retains the freedom and flexibility of a normal commute. Employers still must record all hours actually worked, wherever performed.
Previously, some courts explained that an ordinary commute goes unpaid because of the Portal-to-Portal Act, a law that only addresses activity before or after the workday. That reasoning left open the possibility that a midday commute could be treated differently once the workday had already started. FLSA2026-9 closes that gap by establishing the ordinary commute as its own recognized category of unpaid time, one that can occur even in the middle of an active workday, alongside things like meal breaks.
FLSA2026-10 | Pre-Shift Calls and Field Employee Travel
A field service technician who drives a company vehicle from home to client sites raised a related question. Each morning, before his official shift begins, he receives job assignments by pager and then calls clients and coworkers to coordinate the day. He asked whether that time, and the drive that follows, should be paid.
Here, the WHD found that simply receiving assignments is incidental to commuting and not compensable. However, the calls to schedule and coordinate work are required by the employer and primarily benefit the employer, making that time compensable and marking the actual start of the paid workday. Whether the drive that follows is also paid depends on the degree of employer control. Where the employer requires most of the pre-drive time to be spent on calls and dictates the timing and manner of travel, the employee loses the freedom associated with a normal commute, and the drive becomes compensable. Where the employee instead has a flexible window to complete brief tasks before choosing when to leave, the drive that follows remains an ordinary, unpaid commute.
Employer Takeaways
Both letters confirm that vehicle ownership and timing are not decisive for compensability of travel time. An employer vehicle does not, on its own, make an ordinary commute compensable, nor does it shield otherwise compensable travel. A commute in the middle of the day is analyzed no differently than one at the start or end of the day. Instead, both questions collapse into the primary-beneficiary test.
That said, this remains a fact-intensive analysis, not a bright line rule. In practice, the outcome will still depend on how much control the employer exercises over timing and travel logistics, how much required work happens immediately before or during the drive, and how much genuine freedom the employee retains throughout. Employers should also keep in mind that travel compensability may vary based on applicable state or local laws.
Action Items
- Review compensability practices for employee travel time, as applicable.
- Review state wage and hour laws for broader travel time requirements.
- Consult with legal counsel on specific compensability practices.
- Have appropriate personnel trained on applicable wage and hour requirements.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2026 ManagEase