Labor & Employment Blog

On July 22, 2026, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued two opinion letters addressing when travel time between an employee’s home and work is compensable “hours worked” under the Fair Labor Standards Act (FLSA). Read together, the letters give employers their clearest guidance yet on a question that has grown more pressing as remote work, hybrid schedules, and mobile or field workforces have become the norm: when does a “commute” stop being an ordinary commute and start being paid work time?

Both letters confirm a new, formally recognized concept: the “ordinary commute” is its own standalone category of non-compensable time during the workday—distinct from off-duty time and meal breaks. But whether a given commute qualifies as “ordinary” depends heavily on the facts, and both letters identify circumstances where employers can get this wrong and create unexpected overtime liability.

Why This Matters

These letters are official interpretations that employers may rely on as a good faith defense under Section 10 of the Portal-to-Portal Act. They also signal how WHD will evaluate increasingly common arrangements, such as hybrid/split-shift schedules, remote pre-shift assignments, and mobile field-service roles, in audits and litigation. Employers with non-exempt employees who travel between home and multiple job sites, or who allow flexible/split work schedules, should review their pay practices now.

1.   FLSA2026-9: Mid-Day (Split-Shift) Commutes

This letter addresses employers who let non-exempt employees split their workday between home and the office. These scenarios can include when employees work a few hours at home, commute to the office mid-day, and commute home again later. An employer asked WHD whether mid-day travel becomes paid work time simply because it happens in the middle of the shift rather than at the beginning or end.

The Three Scenarios Addressed

• Avoiding rush hour: An employee shifts her commute to mid-morning/mid-afternoon to dodge traffic, working part of her shift at home and part at the office.
• Voluntary early work performed at home: An employee volunteers to do extra project work at home before her normal commute, rather than coming in early.
• Accommodating a bus schedule: An employee catches an earlier bus and finishes his remaining work from home that evening, with the extra work paid as overtime.

WHD’s Conclusion

In all three scenarios, the commute, even though it occurs in the middle of the workday and even though work is performed at home immediately before or after it, remains a non-compensable “ordinary” commute. The key question is not when the travel occurs, but who it predominantly benefits. Because the flexibility was requested by (or offered for the convenience of) the employee, and the employee was completely relieved of duty during the travel itself, the commute stays “ordinary” and does not need to be paid or recorded as work time.

Practical Takeaways

• Split-shift/hybrid schedules that let employees commute mid-day, rather than only before/after the shift, do not automatically create paid travel time so long as the employee is fully off-duty during the actual travel.
• The commute doesn’t need to save the employee time or be tied to a specific personal appointment to qualify as “ordinary.” Genuine voluntariness is enough.
• This protection does not extend to travel where the employee is working while traveling (g., taking calls or answering emails en route). That time always is compensable.
• It also does not apply to travel between two different job sites during the day (job-site-to-job-site travel remains compensable), or to non-ordinary home-to-work travel such as emergency call-outs or special one-day out-of-town assignments.
• Employers still must accurately record all hours actually worked at home or in the office, even if the connecting commute itself is excluded.

2.   FLSA2026-10: Field Service Employees — Pages, Scheduling Calls, and Drive Time

This letter involves a field service engineer who has no fixed office, drives an employer-provided vehicle, and starts each day by (1) receiving service-request “pages” at home, (2) calling clients (and sometimes coordinating with other engineers) to schedule appointments, and then (3) driving to the first client site. The question: which of these pre-shift activities, if any, must be paid?

WHD’s Conclusion — Three Distinct Rules

• Receiving pages/assignments: NOT compensable. Simply accepting an incoming page or assignment is “incidental” to commuting in an employer-provided vehicle and is excluded under the Employee Commuting Flexibility Act.
• Calling clients to schedule appointments (including coordinating other engineers): This is not a minor byproduct of commuting. It is “integral and indispensable” to the employee’s actual job of installing/servicing equipment, so it counts as a principal work activity and must be paid.
• Drive time to the first appointment: Depends on the facts. If the employee is required to spend most of the pre-shift hour on scheduling calls immediately before, or is required to make those calls while driving, the travel loses its character as an “ordinary” commute and becomes compensable because the employee lacks the flexibility (choice of timing, mode, ability to attend to personal matters) that defines a normal commute.

The Two Scenarios, Illustrated

• Scenario 1 (all scheduling done before leaving home): If the employee spends most of the hour before departure on required scheduling calls and then drives straight to the first site at the time/manner the employer dictates, the entire drive becomes compensable. It is treated as within the continuous workday, not a pre-shift commute.
• Scenario 2 (scheduling calls happen partly during the drive): The portion of the drive before any work begins remains an unpaid ordinary commute. However, once the employee starts making required scheduling calls, even from behind the wheel, the workday has begun, and the remainder of the drive to the first site is compensable.

Practical Takeaways

• For mobile/field workforces, a bright-line “we don’t pay for pre-shift phone time” policy is risky. Time spent merely receiving dispatch notifications can be unpaid, but time spent actually calling to schedule, confirm, or coordinate work is compensable regardless of whether it happens at home or in the vehicle.
• Requiring employees to complete substantial work immediately before or during their commute can convert the whole commute into paid time, even though the same commute would be unpaid if the work were done on a flexible schedule with a wide time window beforehand.
• Employers can use a written “reasonable agreement” under 29 C.F.R. § 785.23 to set a fair, agreed-upon amount of pay for hard-to-track home/pre-shift work, but an actual agreement must be in place. A unilateral policy is not enough.
• The letter reinforces that employer-provided vehicles do not, by themselves, make commute time unpaid, nor do they make otherwise-compensable work time unpaid.

Bottom Line for Employers

Together, these letters draw a consistent line: an employee’s commute is unpaid only when it is genuinely “ordinary,” meaning the employee controls (or voluntarily accepts) its timing and is free from work obligations immediately before, during, and after the drive. The moment an employer dictates the timing of travel and requires substantial work immediately adjacent to or during that travel, the commute can lose its protected status and become compensable hours worked.

Recommended Action Items

• Audit any split-shift, hybrid, or remote/field arrangements where non-exempt employees travel between home and a worksite more than once or perform work at home adjacent to a commute.
• Distinguish, in policy and in practice, between passively receiving assignments/dispatches (generally unpaid) and actively performing scheduling, coordination, or other job-related tasks (generally paid).
• For field/mobile employees, confirm whether pre-shift work is required to be done in a narrow window immediately before travel (higher risk) versus a flexible window (lower risk).
• Consider written § 785.23 reasonable-agreement arrangements where home/pre-shift work time is genuinely hard to track with precision.
• Update timekeeping practices to capture all compensable pre-shift and mid-shift work, even when performed off-site or in a vehicle.
• Review employee handbooks and dispatch/scheduling policies for language that could be read as directing employees to perform substantial work immediately before or during a commute.

This client alert does not constitute legal advice, does not create an attorney-client relationship, and is intended for informational purposes only. Whether a particular commuting or scheduling arrangement is compensable under the FLSA depends on the specific facts involved. Please contact us to discuss how these opinion letters may affect your organization's wage and hour practices.