DOL Issues Two New Opinion Letters

In July, the U.S. Department of Labor issued two new opinion letters addressing how the Fair Labor Standards Act (FLSA) applies to the commuter travel of employees who work part of their workday at home. If you have questions about these opinion letters, please contact a KZA attorney. 

FLSA2026-9: Generally, an employer is not required to pay a non-exempt employee for their “normal” or “ordinary” time spent commuting to and from work. However, what if the employee’s commute occurs in the middle of their workday because they chose to work at home for part of the day? Does a mid-day commute render their time compensable? 

The DOL answered this question: “No,” with a few caveats. First, it determined that “ordinary” home-to-work travel that occurs during the workday is nonworking time and constitutes a third exception to the continuous work-day rule (that once the workday starts, all activity is ordinarily compensable until the workday ends). If, however, travel between home and work during the workday is not “ordinary” and occurs under circumstances such that it primarily benefits the employer, the travel falls within the definition of work and is compensable. 

Thus, an employer could provide scheduling flexibility for the benefit of employees, allowing them to flex their commute time during the workday without having to pay for it provided the commuting time is primarily for the employee’s benefit and they are not performing work while commuting. Commuting time is “ordinary” and not compensable when it is voluntary and the time is spent primarily for the employee’s benefit. 

However, the DOL emphasized that nothing in its opinion letter changed the long-standing rules that (1) travel from worksite to worksite during the workday is compensable and (2) if an employee is engaged in compensable work during a commute, time engaged in such tasks is compensable. “Neither of these situations constitutes an ‘ordinary’ home-to-work commute.” 

FLSA2026-10: This opinion letter addresses a different type of commuting and reaches a different decision. Here, a field service engineer, with no office to commute to, works at home to schedule appointments and then drives from home to his first appointment, then from job site to job site, before returning home after his last appointment.  

The DOL explained that the engineer’s travel between job sites during the workday was clearly compensable time because it was a part of his principal activities. But the time spent driving to his first appointment of the day was also compensable because he had already begun his work at home, scheduling appointments, before commuting. This travel time was not “ordinary” commuting because both the time and manner of the travel was based primarily on the employer’s needs rather than the employee’s choice and because the employer required him to engage in substantial work both immediately before the travel and after the travel. “This bears few, if any, of the hallmarks of an ordinary commute between an employee’s home and worksite.” The engineer lacked the “freedom and flexibility that typically accompany an ordinary home-to-work commute time, such as the choice of the mode of transportation, the choice of departure time, and the ability to spend time on personal tasks before or during breaks in the travel.”  

However, the DOL explained that when the engineer starts his day with travel, instead of calling clients, his initial commuting time is not compensable because ordinary commuting from home to work is not compensable whether the employee is traveling to the office or a jobsite. Once the engineer begins making client calls and performing his principal duties, his commute time changes into compensable time. Thus, if he leaves the house at 6:00 a.m., but does not begin calling clients until 7:00 a.m., his first hour of commuting is noncompensable.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.