Department of Labor Issues Opinion Letter on Midday Commuting by Non-Exempt Employees

On July 22, 2026, the U.S. Department of Labor (DOL) issued an opinion letter providing welcome assurance for employers with remote employees who commute between a home office and their employer’s workplace during a workday. 

In recent years, many employers have adjusted operations to allow employees to telework from their homes where business needs permit, and employees have embraced this flexibility. However, if non-exempt employees work in more than one location during a single workday, it is necessary to clarify whether existing regulatory frameworks would allow employees’ ordinary commute to and from the worksite if it occurs in the middle of the workday to be considered “ordinary commute time” and thus non-compensable. With this opinion letter, the DOL reviewed whether travel between an employee’s home and office during the middle of the workday must be treated as compensable work time under the Fair Labor Standards Act (FLSA) when the employee performs work at both locations and the travel is a voluntary alternative to commuting before or after the workday. 

The letter addresses commute-time compensability of home-to-work travel in three different scenarios:

• Scenario 1. A non-exempt employee is scheduled to work 9:00 a.m. to 5:00 p.m. and typically commutes to the office from 8:00 a.m. to 9:00 a.m., and home from 5:00 p.m. to 6:00 p.m. Driving two hours daily is not ideal for the employee, who wants to avoid rush hour traffic by commuting between 10:00 a.m. and 10:30 a.m. and 3:00 p.m. and 3:30 p.m., reducing the total drive time by an hour. The employee requests to work at home from 8:00 a.m. to 10:00 a.m. before driving to the office, and from 3:30 p.m. to 5:00 p.m. after returning home from the office. The employee takes a 30-minute lunch break at noon regardless of her location, so either arrangement results in the employee working a normal schedule of 7.5 hours.
• Scenario 2. A non-exempt employee volunteers to work additional hours for a special project that is short-staffed. However, the employee is only interested in the work if the employee can perform the additional work during the early hours of the morning before leaving for her regular shift at the office, instead of arriving at the office early or staying late.
• Scenario 3. A non-exempt employee uses the city bus to commute to and from the office and is unable to complete his day’s work before the last bus leaves for the day. The employee asks the employer for permission to bring his work home to complete the work after arriving home.

The DOL confirmed that the home-to-work travel time in each of these scenarios would be non-compensable, “ordinary” commute time. The DOL rejected the idea that once an employee performs work at home, any subsequent travel between home and office automatically becomes compensable under the continuous workday doctrine. Instead, the DOL identified three categories of time that commonly occur within the workday but are not compensable hours worked, regardless of where they occur in a workday: 1) bona fide meal periods, 2) off-duty periods, and 3) ordinary home-to-work commuting. The opinion emphasized the longstanding principle that time is work if it is spent predominantly for the employer's benefit, rather than the employee’s. If home-to-work travel is undertaken principally to accommodate an employee’s preferences or needs, it remains ordinary commuting and is not compensable regardless of when it occurs in a workday.

This opinion provides significant support for hybrid-work arrangements involving non-exempt employees. According to the DOL, employers may allow employees to split their day between home and office, and mid-day commuting need not be paid simply because the employee performed compensable work before or after the trip. The key inquiry is whether the travel primarily benefits the employee, rather than travel undertaken principally for the employer’s benefit.

The DOL did note, however, that this opinion does not alter existing principles that the following time remains compensable under the FLSA:

• Travel from one worksite to another during the workday.
• Travel that is itself part of the employee’s principal activities.
• Work actually performed while traveling (e.g., performing work tasks during the commute).
• Special one-day assignments or emergency-call travel that primarily benefits the employer.

And indeed, another opinion letter was issued the same day discussing a situation in which DOL deemed an employee’s home-to-work travel to be compensable time under the FLSA.

Employers with questions about whether certain activities can be considered compensable under the FLSA (or under relevant state law) should confer with experienced employment counsel.