New DOL Opinion Letters Offer Employer Guidance on Compensable Travel Time

Takeaways

• Two DOL opinion letters explain how “mid-day” commuting for hybrid workers who voluntarily split their workday is not compensable travel time.
• Travel time becomes compensable when the employer, rather than the employee, controls the timing and requires substantial work immediately before and after the commute.
• The opinion letters provide a detailed history of the evolution of what is considered “work” under the FLSA.

Related links

• FLSA2026-9
• FLSA2026-10
• DOL Opinion Letters page

Article

A recent pair of Department of Labor (DOL) opinion letters issued by the Wage and Hour Division (WHD) discuss when employee travel between home and work counts as compensable “hours worked” under the Fair Labor Standards Act (FLSA). The letters address similar factual scenarios, but they reach different conclusions as to whether the time is compensable. It is important for employers to understand the reasoning behind these results.

The opinion letters also provide a detailed history of the evolution of what is considered “work” under the FLSA.

Mid-Day Commuting is Not Compensable

FLSA2026-9 considers non-exempt employees who want to split their workday between home and office. The employer does not allow employees flexibility to begin their commute after the morning rush (and work from home prior to commuting) or begin their commute home earlier to avoid the evening rush because the employer fears that it would have to pay employees for the time spent in their mid-day commute under the “continuous workday” principle, since the commute began after the workday began and prior to the workday ending. The employer posed the question whether a “mid-day” commute requested by the employee to avoid rush hour traffic would be compensable time.

WHD concluded this travel remains an “ordinary” or “normal” commute and, therefore, is not worktime even though it happens in the middle of the continuous workday and predominantly benefits the employee rather than the employer. Travel in the middle of the continuous workday would normally be compensable because the timing of the travel is voluntary and driven by the employee’s own preferences (avoiding traffic, working around a sick child, and so on.)

With this opinion letter, WHD formally recognizes a “third category” of time that is non-compensable even though it occurs during the continuous workday. (Off-duty time during the workday and bona fide meal breaks also are non-compensable.)

Travel Time Following Pre-Commute Work is Compensable

The scenario described in FLSA2026-10 involves a field service engineer who travels to clients as part of his duties. He has no fixed office and spends up to an hour each morning receiving pages and calling clients (and sometimes other engineers) to schedule service appointments before leaving home for his first client appointment in an employer-provided vehicle.

The engineer’s phone calls to schedule appointments are compensable, the letter advises, because the calls are integral and indispensable to the engineer’s principal job of installing and servicing equipment. The engineer’s travel time is also compensable because the employee is required to perform substantial work (scheduling calls) immediately before the drive and again immediately after arriving at the first job site. A key factor is that the timing and manner of the travel are dictated by the employer rather than chosen by the employee. The letter pointed out that if the employer did not require the employee to perform this work immediately prior to travel, the result might be different.

DOL further finds receiving pages is not compensable, however, because the task is merely “incidental” to using an employer-provided vehicle for commuting under the Employee Commuting Flexibility Act.

Reconciling the Letters

Both letters apply the same primary-beneficiary test but reach opposite results.

In FLSA2026-9, the employee chooses when to travel and is not performing employer-directed work immediately adjacent to the drive, so the travel remains an “ordinary” commute and is unpaid.

In FLSA2026-10, the employer dictates the schedule and requires work immediately before and after the drive, which makes the subsequent travel compensable time. Those combined factors eliminate the flexibility that normally defines an “ordinary” commute.

Practical Takeaways

These opinion letters are helpful to employers who want to offer employees more flexibility with commuting times but do not want to incur the risk that the commute is compensable work. The guidance is especially helpful for employers that retain field service or traveling employees, or utilize flexible or hybrid schedules, or take-home work policies.

Remember, however, some state laws impose stricter requirements than federal law regarding what constitutes compensable work and when travel time is compensable.

Opinion Letters

DOL opinion letters offer useful guidance on how the agency may apply the FLSA in specific situations. An opinion letter can be a valuable defense for an employer to avoid a finding of a “willful” violation of the FLSA in a lawsuit related to the matter addressed in the guidance on which it relied. Employers can review opinion letters and submit requests on the DOL Opinion Letters page.

Reach out to your Jackson Lewis attorney if you have questions about the opinion letters or for assistance in preparing an opinion letter request for your organization.