On July 22, 2026, the U.S. Department of Labor (DOL) issued a new opinion letter analyzing whether travel time between an employee’s home and work would be considered compensable under the Fair Labor Standards Act (FLSA) as hours worked.
Travel before and after vs. travel during
Specifically, in FLSA2026-9 opinion letter, the employer’s inquiry centered on nonexempt employees who spend part of their day working remotely at home and the other part working in the office. The employer wanted to know if the travel time for these employees was considered hours work simply because their commutes occurred in the middle of their workday. Generally, under the FLSA, an employee’s travel to his primary jobsite during the workday is considered hours worked. Travel before and after the workday, however, is not.
In the opinion letter, the DOL provided three examples:
- Commuting in the middle of the day to avoid rush hour. An employee starts the workday at home and leaves later for the office to avoid morning rush hour. The employee also leaves the office earlier to avoid the evening rush hour. Once home, the employee does more remote work. The employee requests this accommodation to avoid two hours in commute time.
- Volunteering for extra work if it can be performed at home. An employee agrees to do an extra project as long as it can be done at home before the normal commute rather than coming in early. The employee isn’t interested in coming to the office early or staying later to complete the project.
- Leaving work early to take public transportation. An employee leaves work early to catch the last bus and finishes the remaining work at home. The employee requested to be able to finish work from home so they could take the bus.
In all three examples, the DOL concluded that the commutes represented noncompensable time under the FLSA even though they occurred in the middle of workday. According to the DOL, the determinative factor wasn’t when the commutes occurred. Instead, the key factor was who predominantly benefited from the arrangement. Here, the three employees requested commuting in the middle of the day to accommodate their needs. Additionally, they were relieved of duty during the travel time. As a result, the commutes didn’t need to be paid or recorded as work time.
Takeaways
In light of the DOL’s opinion letter, keep the following points in mind:
- Hybrid remote work schedules won’t necessarily cause commute times to be compensable. If the employee requests the hybrid schedule, their request is enough.
- To avoid commutes being compensable, an employee must be relieved of all work duties during the actual travel time.
- Commute time between two different jobsites is still compensable.
- While working at home, employees should record all hours worked. Additionally, if an employee works over 40 hours, including remote hours, they are entitled to overtime.
In applying the takeaways, it’s important to note that DOL opinion letters aren’t binding authority. However, they offer important insight into how the DOL treats a particular compliance issue.
Jennifer L. Sellers is a senior member with The Cavanagh Law Firm, P.A., and a contributor to Arizona Employment Law Letter. She practices employment and labor law with a focus on counseling and agency practice. She may be reached at jsellers@cavanaghlaw.com or 602-322-4134.