On July 22, 2026, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued two opinion letters offering timely insight into common wage-and-hour questions arising under remote/hybrid work arrangements and flexible commutes. The opinion letters address the following issues:
- FLSA2026-9: Whether mid-day travel between the home and office is compensable worktime under the Fair Labor Standards Act (FLSA), where the employee performs work at both locations and the mid-day travel is a voluntary alternative to an unpaid commute that would otherwise occur before or after the employee’s workday.
- FLSA2026-10: Whether time spent receiving remote work assignments, calling clients to schedule appointments, and driving from home to the first client appointment is compensable worktime under the FLSA.
The letters provide key insights into the WHD’s interpretation of the following doctrines:
- Continuous Workday Doctrine: Time is generally compensable from the employee’s first to last principal activities of the workday.
- Portal-to-Portal Act: Time spent on an ordinary home-to-work commute and on preliminary or postliminary activities before the first principal activity or after the last principal activity generally is not compensable under the FLSA.
- Primary Beneficiary Analysis: Whether the time spent at issue primarily benefits the employer or the employee.
- Employee Commuting Flexibility Act: When an employee voluntarily agrees to use an employer-provided vehicle for commuting, time spent engaging in activities incidental to the commute generally is not compensable worktime.
While the WHD reached differing conclusions under each letter—highlighting the fact-sensitive nature of each determination—the unifying theme focuses on the “primary beneficiary” analysis: Whether the time spent predominantly benefits the employer or the employee.
VOLUNTARY MID-DAY WORK-TO-HOME TRAVEL TIME
An employer allows employees to split their workday between home and the office and voluntarily commute during the workday instead of before or after it. The opinion letter addresses the compensability of home-to-work travel in the following scenarios under the assumption that the employees are fully relieved of work duties during their commute, travel time is 20+ minutes, and the employer captures all worktime regardless of their work location.
- Scenario 1: A non-exempt employee scheduled to work 9am to 5pm works at home from 8am to 10am before driving to the office, and from 3:30pm to 5pm after returning home from the office. The employee takes a 30-minute lunch break regardless of their 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 but only if they can perform the additional work before leaving for their regular shift at the office, instead of arriving early or staying late.
- Scenario 3: A non-exempt employee who takes a bus to and from the office cannot complete their work before the last bus leaves for the day. They ask to complete the work at home with overtime hours.
Q: Whether mid-day travel between an employee’s home and office is compensable under the FLSA where the employee performs work at both locations, and the mid-day travel is offered as a voluntary alternative to unpaid commuter travel that would otherwise occur before or after the employee’s workday.
A: No. Under all three scenarios, the WHD concluded that the mid-day travel is not compensable because it constitutes an “ordinary” commute that is incidental to employment (i.e., primarily benefits the employee). The WHD reiterated the two categories of non-compensable time that commonly occurs in a workday and identified a third category, as follows: (1) bona fide meal periods; (2) off-duty periods; and (3) ordinary home-to-work commute. All three scenarios fall under the third category.
While travel time could be compensable if it occurs under circumstances that primarily benefit the employer (e.g., special one-day assignments), the mid-day travel scenarios noted here were offered as an optional alternative that primarily benefited the employee (i.e., to avoid rush hour travel) and merely substitute for an otherwise ordinary unpaid commute that would have occurred at the beginning or end of the workday. The WHD explained that otherwise ordinary travel time does not become worktime simply because it occurs between an employee’s first and last principal activities, so long as the employee retains the freedom and flexibility of a normal commute. While the employer must pay for work performed at home, the WHD concluded that the employer need not record or pay for the mid-day travel time.
PRE-SHIFT TRAVEL TIME & WORK ACTIVITIES
A field service engineer who drives an employer-provided vehicle from home to client locations typically receives three to five given service requests one hour before his regular shift begins. He spends 15 seconds accepting each request through the pager system and five to 10 minutes per client call to schedule the service visit. The amount of pages received and the length of client calls vary by day without advanced notice. The employee requested guidance on the compensability of time spent performing duties at home and traveling before the paid shift under the following two scenarios:
- Scenario 1: The employee leaves home at 8am to drive to the first client appointment. Before doing so, the employee spends 7am to 8am at home receiving pages and calling clients to schedule appointments. During this time, he also engages in personal activities, such as drinking coffee, getting ready, and collecting supplies for the workday. The employer does not pay for the pre-shift hour spent receiving pages and scheduling appointments.
- Scenario 2: The employee must leave home before 8am to get to the first appointment with some or all of the drive time occurring outside their paid shift. While traveling between 7am to 8am, the employee receives pages and calls clients to schedule appointments. The employer only pays for drive time after the first hour (e.g., for an 8:30am appointment that requires leaving at 6am because it is a 2½ hour drive from home, the employer only pays for drive time from 7am to 8am, plus the 30-minute portion that occurs during the paid shift).
Q: Whether time spent receiving pages and calling clients to schedule appointments is compensable under the FLSA.
A: The WHD concluded that (1) time spent receiving pages is not compensable, but (2) time spent calling clients and scheduling appointments is compensable.
Time Spent Receiving Pages
Time spent receiving pages, whether at home or during the commute, is not compensable because it is incidental to driving an employer-provided vehicle. The WHD explained that having an employer-provided vehicle allows the employee to drive directly to work sites without reporting to a central location for work assignments. Because receiving remote work assignments is a “minor consequence” of such a convenience, the WHD concluded that such time is not compensable under the FLSA.
Time Spent Calling Clients and Scheduling Appointments
Conversely, time spent calling clients to schedule appointments is compensable because it is integral and indispensable to the employee’s principal work activities. The WHD explained that these activities are required by and primarily benefit the employer. Unlike simply receiving pages, calling clients and scheduling appointments are a necessary step to performing the requested services. Thus, such time is compensable under the FLSA.
Q: Whether time spent traveling to the first client location is compensable under the FLSA.
A: Travel time is compensable if it occurs after the first principal activity of the day and the commute is not “ordinary.”
First Scenario
Under the first scenario, the WHD determined that the travel time is compensable because it occurs after the employee performs the first principal activity of the day (i.e., calling clients). The WHD also noted that the travel is not an “ordinary” commute because (1) the time and manner of the travel is based on the employer’s needs, not the employee’s choice, and (2) the employee is required to engage in “substantial work” both immediately before and after the travel.
The WHD explained that being required to perform principal activities throughout a commute prevents the exercise of freedom and flexibility associated with an ordinary home-to-work commute. Based on these facts, the WHD determined that the commute occurs during the workday, and thus, is compensable under the FLSA.
As to the pre-shift hour spent at home, the WHD acknowledged that time spent calling clients to schedule appointments may vary considerably by day making it difficult to determine the exact hours worked. In such cases, the WHD informs that employers and employees may enter a “written mutual agreement” to determine compensation, taking into consideration “all of the pertinent facts” to ensure sufficient compensation for all hours worked.
Second Scenario
Under the second scenario, the travel time from 6am to 7am is not compensable because it is an ordinary home-to-work commute that precedes the performance of principal activities. In such cases, the WHD notes that the employer’s practice of compensating pre-shift travel time only in excess of one hour is acceptable. After the employee makes the first client call at 7am, however, his workday begins and the remaining travel time until his arrival at the first location is compensable to the extent that he spends “much of the time” scheduling appointments with clients.
EMPLOYER TAKEAWAYS
While the WHD’s determinations are fact-specific, the practical takeaway is that travel time generally is not compensable if it primarily benefits the employee, is genuinely voluntary, and the employee is free from all duties throughout the commute. Taking this into consideration, employers may wish to consider the following:
- Review travel time policies to ensure they properly distinguish between ordinary commutes and compensable travel, particularly for remote or field employees.
- Train managers to recognize when the first principal activity triggers the start of the workday.
- Evaluate pre-shift work activities to determine whether they are integral and indispensable to an employee’s principal duties and must be treated as compensable worktime.
- Implement reliable timekeeping procedures to accurately capture all compensable work performed before, during, and after travel, particularly for remote and field employees.
- Implement written mutual agreements to determine compensation for at-home work where hours may fluctuate by day.
If you have any questions related to these opinion letters, or need assistance reviewing your organization’s wage and hour policies and practices, please reach out to the Nukk-Freeman & Cerra Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.