Quick Hits
- The WHD issued two companion opinion letters, FLSA2026-9 and FLSA2026-10, that together explain how it analyzes whether commute and pre-commute time is compensable under the FLSA.
- The unifying test is the “primary beneficiary” analysis—time predominantly for the employer’s benefit is work, time predominantly for the employee’s benefit is not—applied to the totality of the circumstances.
- FLSA2026-9 recognizes the ordinary commute as a third category of noncompensable time that can occur during the continuous workday, alongside bona fide meal breaks and off-duty time
- FLSA2026-10 holds that merely receiving assignments is incidental to commuting and not compensable, but calling clients and coordinating other workers is integral, indispensable work that starts the workday—and can strip a subsequent drive of its “ordinary” character when the employer dictates timing and requires substantial work before or during travel.
The letters, FLSA2026-9 and FLSA2026-10, are timely for employers managing hybrid and remote work arrangements, as well as those with field-based or dispatch workers who start their day at home.
The letters are also notable for their depth, tracing the “hours worked” concept through the FLSA’s early history, ranging from the Portal-to-Portal Act and the 1996 Employee Commuting Flexibility Act (ECFA) to seminal Supreme Court of the United States case law. The result is a consolidated statement of the WHD’s current thinking, which rests on three doctrines that may be applicable when employers are assessing their own practices:
- Primary-Beneficiary Test: Is the time spent predominantly for the employer’s benefit or the employee’s?
- Continuous Workday Doctrine: Once the first principal activity begins, time is generally compensable until the last principal activity ends.
- Portal-to-Portal Act: This statute excludes ordinary commuting and preliminary/postliminary activities from compensable time, but only before or after the workday. Activities “integral and indispensable” to the employee’s principal work are compensable.
FLSA2026-9: Midday Commuting in a Split Home-and-Office Workday
Background
The requester employs a large nonexempt, office-based workforce and wanted to let employees split a single workday between home and the office. The concern: the midday drive might be compensable “travel from job site to job site during the workday” under 29 C.F.R. § 785.38. The employer posed three scenarios: (1) an employee shifts her commute to off-peak hours—working at home early morning and late afternoon—to cut her drive time; (2) an employee volunteers to do extra early-morning work at home before driving in; and (3) an employee catches the last available bus home and finishes assigned work there. In each scenario, the employee was fully relieved of duties during the travel.
The DOL’s Analysis and Conclusion
The WHD began with the settled rule that an ordinary home-to-work commute is a “normal incident of employment” that primarily benefits the employee and has never been treated as work. Critically, the WHD explained ordinary commuting was understood not to be “work” even before the Portal-to-Portal Act existed, so its exclusion does not depend on that statute. From that premise, the WHD drew its key conclusion: an otherwise-ordinary commute does not become compensable simply because it happens in the middle of the workday. The ordinary commute is thus a third category of noncompensable time that can occur during the continuous workday, alongside meal breaks and off-duty periods.
Applying this analysis to the three scenarios, the WHD found each commute ordinary and noncompensable. A midday commute need not reduce total drive time or be paired with a personal errand to remain “ordinary”—it is enough that the timing is genuinely voluntary and primarily benefits the employee. Performing compensable work at home before or after the drive does not, by itself, convert the commute into work time. The at-home work is paid, but the surrounding travel is not, so long as the employee retains the freedom and flexibility of a normal commute. Though the employer need not pay for the travel, it must still record all hours actually worked, wherever performed.
FLSA2026-10: Pre-Shift Calls, Company Vehicles, and When a Commute Becomes Work
Background
A field service engineer who installs and services magnetic resonance imaging (MRI) systems, with no fixed office, drives an employer-provided vehicle from home to client sites. Between 7:00 a.m. and 8:00 a.m. he receives several pages with service requests, then calls clients to schedule appointments—and sometimes calls other engineers to cover or assist—before driving to his first job. His paid shift runs from 8:00 a.m. to 5:00 p.m. He asked whether the FLSA requires pay for receiving the pages, making the calls, and driving to the first appointment, in two scenarios: one where he completes the calls at home and leaves at 8:00 a.m., and one where he must leave earlier and makes calls in the vehicle en route.
The DOL’s Analysis and Conclusion
The WHD drew a careful line between receiving assignments and acting on them. Under the ECFA, use of an employer-provided vehicle—and activities incidental to that use—are not principal activities, so merely receiving pages is incidental to the commute and not compensable. Calling clients to schedule appointments and coordinating with other engineers, by contrast, is required by and primarily benefits the employer. Because this work is integral and indispensable to the engineer’s principal duties, it is compensable.
Because the client calls are a principal activity, they start the continuous workday. But is the ensuing drive to the first site still an “ordinary” commute? The Portal-to-Portal Act addresses only preliminary and postliminary activities—once the workday begins, the statute offers no guidance on what counts as compensable work. Drawing on its companion letter, the WHD said the drive is not ordinary—not where the employer requires the engineer to spend most of the pre-drive hour on calls, dictates the timing and manner of travel, and requires principal work immediately on arrival. Under those facts, the employee lacks the freedom that characterizes a normal commute, so the drive is predominantly for the employer’s benefit and is compensable. The WHD contrasted this with situations where employees have a long, flexible window to complete at-home administrative tasks—there, the commute remains ordinary.
The WHD’s bottom line: receiving pages is not compensable, but calling clients and scheduling appointments is. When the employee completes the calls at home and then drives, the drive is compensable. When he leaves early and calls en route, the workday begins with the first call—the pre-call portion of the drive is an ordinary (noncompensable) commute, while the remainder is compensable. Where at-home work time is variable and hard to measure, the parties may use a reasonable agreement under 29 C.F.R. § 785.23.
The Big Picture: Clarity in a Still Fact-Intensive Inquiry
Together, these letters do not change the law substantively, but they do provide a clearer analytical scaffold for a question that has long been ambiguous and intensely fact-driven:
- A named exception to the continuous workday: ordinary commute. Before these letters, courts had sometimes described the ordinary commute’s noncompensability as flowing from the Portal-to-Portal Act. Because that statute applies only to activities before or after the workday, that framing implied a mid-workday commute might be compensable if it occurred after the first principal work activity. FLSA2026-9 rejects that implication and names the ordinary commute as a standalone third category of noncompensable time.
- Vehicle ownership and timing are not decisive. The letters make explicit that whose vehicle is used, and when in the day an activity occurs, are secondary. An employer vehicle neither makes an ordinary commute compensable nor shields otherwise compensable travel; a commute in the middle of the day is analyzed no differently than one at the start or end. Both questions collapse into the primary-beneficiary test.
- The inquiry remains fact-intensive by design. These letters do not eliminate case-by-case judgment. Both rest on the totality of the circumstances, and FLSA2026-10 pointedly declines to say how few calls or how little employer control would tip a drive into compensable time. The line between an “ordinary” commute and compensable travel still turns on degree (i.e., how much the employer controls timing and manner of travel, how much integral work is required before or during it, and how much freedom the employee retains).
These opinion letters supply a reliable framework—anchored in the primary-beneficiary test and the “integral and indispensable” standard—for analyzing new fact patterns. They meaningfully expand flexibility for hybrid and split-day work. But they also confirm that classifying travel time will remain a fact-specific exercise, and employers bear the burden of getting the analysis right.
Action Items for Employers
In light of the guidance, employers may wish to consider the following:
- Reviewing hybrid and split-day arrangements to confirm that midday commutes are genuinely voluntary, primarily for the employee’s benefit, and free of actual work during the travel.
- Auditing pre-shift practices for field and dispatch employees—distinguish noncompensable receipt of routes, pages, or assignments from compensable scheduling, calling, and coordination work. Employers may also want to assess how much the employer controls the timing and manner of travel; heavy control paired with required work can render a drive compensable.
- Confirming that timekeeping systems capture all hours actually worked (at home and in the field) regardless of location. Where at-home work time is variable and hard to measure, consider using a reasonable agreement under 29 C.F.R. § 785.23.
- Accounting for state wage-and-hour laws, which may treat travel and commute time more expansively than the FLSA.
Ogletree Deakins’ Wage and Hour Practice Group will continue to monitor developments and provide updates on the Wage and Hour blog as additional information becomes available.
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