The U.S. Department of Labor’s Wage and Hour Division issued two opinion letters on July 22, 2026, providing important new guidance about when employee travel between home and a worksite constitutes compensable “hours worked” under the Fair Labor Standards Act (FLSA) and the Portal-to-Portal Act.
Together, the letters establish a framework particularly relevant to employers with telework, split-shift, and mobile/field-service arrangements.
Key Holdings
Mid-Day Commuting Under Telework/Split-Shift Arrangements (FLSA2026-9)
- An “ordinary” or “normal” commute between home and the office is a separate category of non-compensable time during the workday (in addition to off-duty time and bona fide meal breaks), even when it occurs mid-day under a split-shift or telework arrangement.
- Travel time remains non-compensable where it is voluntary and primarily benefits the employee (e.g., avoiding rush-hour traffic), regardless of whether total commute time is reduced.
- Work performed at home before or after a commute is itself compensable, but it does not convert the subsequent ordinary commute into compensable time.
Field Service Employees and Employer-Provided Vehicles (FLSA2026-10)
- Merely receiving pages or messages while in an employer-provided vehicle is “incidental” to commuting under the Employee Commuting Flexibility Act (ECFA) and is not compensable.
- The time spent on pre-shift phone calls to schedule client appointments is compensable because such calls are integral and indispensable to the employee’s principal duties.
- Once compensable work (e.g., scheduling calls) begins, the continuous workday is triggered and subsequent drive time to the first client site becomes compensable—because the employee lacks the flexibility characteristic of an ordinary commute.
- Employers and employees may use written “reasonable agreements” under 29 C.F.R. § 785.23 to compensate variable amounts of at-home work time that are difficult to measure precisely.
What This Means for Employers
- Review telework and hybrid policies. The time engaged in mid-day commutes under voluntary flexible arrangements is generally non-compensable, but employers should ensure travel remains truly voluntary and employee-driven.
- Audit mobile/field-service pay practices. Distinguish between incidental use of employer-provided vehicles (which is non-compensable) and pre-shift work duties that trigger the continuous workday (which is compensable).
- Document the “ordinary commute” analysis. Travel time becomes compensable where its timing and manner are dictated by the employer and impose significant constraints on the employee. Retain records demonstrating employee flexibility.
- Consider 29 C.F.R. § 785.23 agreements. For employees performing variable pre- or post-shift work at home, written reasonable-time agreements may provide a practical compliance mechanism.
- Confirm compliance with state and local law. These opinion letters interpret only the federal FLSA. State and local wage-and-hour laws may impose stricter travel-time pay requirements, and employers should confirm their practices satisfy all applicable state and local obligations before relying on this federal guidance.
If you have questions about how these opinion letters may affect your organization’s travel-time pay practices or telework policies, please contact a member of Thompson Coburn’s Wage & Hour practice.
