The U.S. Department of Labor’s Wage and Hour Division issued two new opinion letters, FLSA2026-9 and FLSA2026-10, on July 22, 2026, addressing how the Fair Labor Standards Act (FLSA) treats travel by employees who work part of their day at home.
These letters offer useful guidance for employers managing telework, split shifts, and mobile field workforces. Employers can use this guidance to ensure compliance with labor laws.
A DOL opinion letter is an official written opinion on how a law applies to a specific workplace situation. It responds to a request submitted to the DOL and is based solely on the facts articulated in the request.
Opinion letters are not binding on courts, but they carry weight as persuasive authority and can help demonstrate good faith to avoid liquidated damages in FLSA litigation. The DOL issues these letters to provide clarity on labor laws.
Opinion Letter FLSA2026-9 addresses whether an employer must record and pay for mid-day travel between an employee’s home and work office as compensable “hours worked” under the FLSA. The DOL’s answer is no, such mid-day travel qualifies as “ordinary” or “normal” commuter travel, a category of non-compensable time.
This means employers need not record or pay for it, as long as the employee, not the employer, is driving the choice of timing.
The DOL concluded that “ordinary home-to-work travel that occurs during the workday constitutes a third category of time during the workday, in addition to bona fide meal breaks and off-duty time, that is not considered ‘hours worked’ under the FLSA.” This clarification helps employers understand their obligations.
Opinion Letter FLSA2026-10 addresses whether a field service engineer must be compensated for time receiving pages from an employer’s paging system, time calling clients and other engineers to schedule service appointments, and drive time from home to the first client site.
Whether the drive time itself is compensable depends on whether the employer, rather than the employee, dictates the timing and manner of the travel.
In practice, this development means that employees who work from home or have split shifts may not be entitled to compensation for their mid-day commutes, unless their employer dictates the timing and manner of the travel. Employers should review their policies to ensure compliance.
For employers, this means they can allow non-exempt staff to split a workday between home and office without treating the mid-day commute as paid time, as long as the employee is driving the choice of timing.
However, if the employer imposes constraints that primarily benefit the employer, the travel is more likely to be treated as compensable. Employers should be aware of this distinction to avoid potential litigation.
Employers should review existing policies and confirm that any required pre-shift work is being captured and paid. By doing so, employers can ensure compliance with the FLSA and avoid potential litigation.
The two opinion letters draw a clear line: an ordinary commute, even one occurring mid-workday, is not compensable unless the employer dictates its timing and manner and imposes constraints that make the travel primarily benefit the employer rather than the employee.
It is essential for employers to understand these rules to maintain a positive and compliant work environment, as seen in cases like the one where Chief Justice scolds attorney for errors.
