The U.S. Department of Labor (DOL) Wage and Hour Division (WHD) recently issued two opinion letters 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.
Mid-day Travel 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: (1) the travel isn’t part of the employee’s principal job duties; (2) the employee isn’t performing work while traveling; and (3) 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.
Work Communications Before Commute
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.
Takeaway for employers
Whether nonexempt employees’ communication outside the workplace or commute time during the workday is compensable is a fact-specific inquiry that requires careful consideration. 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.
Brennan Barger is an attorney in the Oklahoma City office of McAfee & Taft and can be reached at brennan.barger@mcafeetaft.com.