On July 22, 2026, the U.S. Department of Labor issued Opinion Letter FLSA2026-9 in response to an employer’s questions about whether employee time spent commuting between home and work must be compensated if it occurred in the middle of the employee’s regular workday, meaning the employee performed work from home before traveling to the office or after returning home from the office. The employer offered three scenarios to illustrate the question: (1) the employee begins and ends their regular workday at home, traveling to and from the office from 10:00-10:30 and 3:00-3:30 to save time by avoiding traffic congestion; (2) the employee offers to work extra hours on a project, provided the additional work can be done at home before coming into the office for their regular shift; and (3) the employee commutes by city bus, and since the last scheduled bus leaves before the end of the employee’s shift, the employee asks to be allowed to complete their work after arriving home.
The DOL found that in all three scenarios, the travel between the employee’s home and workplace is not considered hours worked under the FLSA. The DOL explored the possible source of confusion, coming from language of the 1947 Portal-to-Portal Act, which states that travel time and activities “preliminary or postliminary” to principal work activities would not be compensable when they occurred prior to or after the employee’s work. Employers were concerned that they could be required to pay for travel time that occurred mid-shift. In this Opinion Letter, the DOL makes clear that an otherwise normal commute does not become compensable because an employer allows flexibility for it to occur mid-day. This is good news for employers and employees who have become accustomed to remote and hybrid work schedules.
There are important caveats to the DOL’s endorsement of flexible commute times. First, the employee must be fully relieved of working during the commute. If the employee is taking calls, running errands for the employer, or otherwise performing work for the employer during the commute, the work time is compensable. Second, employee travel from job site to job site during the workday is still considered compensable work time. Finally, the DOL notes that an employee must be compensated for “non-ordinary” commutes, such as coming in outside the regular workday for an emergency or traveling from home to an out-of-town worksite for a special assignment.
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