DOL: Mid-Day Commutes for Hybrid Workers Are Not Paid Worktime

With more employers offering non-exempt employees the flexibility to split their workday between home and the office, a common question has emerged: if an employee drives home in the middle of the day to finish out a shift, does that middle-of-the-day trip count as paid worktime under the Fair Labor Standards Act (FLSA)?

On July 22, the U.S. Department of Labor's Wage and Hour Division answered that question in Opinion Letter FLSA2026-9. It concluded that a voluntary mid-day commute is still an ordinary commute, not compensable "hours worked," even though it occurs in the middle of the employee's workday.

Ordinary Commutes Are Not "Work"

It is a well-established rule that "normal travel from home to work is not worktime," a principle that predates the Portal-to-Portal Act and is now codified at 29 C.F.R. § 785.35. Ordinary commuting is treated as a "normal incident of employment" that predominantly benefits the employee, largely because it allows employees to choose where they live. This differs from travel that is compensable, such as travel from job site to job site during the workday, or travel that is otherwise part of an employee's principal job duties, both of which must be counted as hours worked.

Under the "continuous workday" doctrine, once an employee's workday begins, activities during the workday are generally compensable, even idle time, until the workday ends. However, Opinion Letter FLSA2026-9 clarifies that an "ordinary" or "normal" commute is a distinct, third category of time that falls outside "hours worked," even when it happens in the middle of the continuous workday. Critically, this exclusion does not depend on the Portal-to-Portal Act, which only addresses activities occurring before or after an employee's first and last principal activities. Because ordinary commuting was never considered "work" even before the Portal Act existed, the timing of a commute relative to the workday is irrelevant to its compensability.

Applying these principles, Opinion Letter FLSA2026-9 concluded that mid-day travel is excludable, ordinary commuting when it:

• • Is voluntary
  • Primarily benefits the employee
  • Allows the employee to avoid an earlier or later unpaid commute

An employee's home also does not become a "job site" simply because the employee performs work there. A commute to or from that home does not become part of an employee's "principal activity" merely because work is performed on one end of it.

Important Limits on the DOL’s Mid-Day Travel Guidance

Opinion Letter FLSA2026-9 does not disturb these two longstanding rules:

1. 1. Travel from job site to job site during the workday remains compensable.
   2. Any work actually performed during a commute is compensable.

The opinion is also limited strictly to ordinary commuter travel; it does not change the rule that rest breaks of up to 20 minutes are always compensable, or that other continuous-workday activities remain compensable unless they qualify as a bona fide meal break or off-duty time.

Finally, home-to-work travel can still be compensable where it is not truly "ordinary.” For example, travel may still be compensable when the employer dictates both the travel and its timing in a way that imposes significant constraints on the employee, making the travel predominantly beneficial to the employer rather than the employee.

Practical Takeaways for Employers

Employers that allow their employees to split their workday between home and the office should keep the following in mind:

• • Choice is key. The mid-day commute should be offered as an option the employee affirmatively chooses, rather than a schedule the employer imposes.
  • Employees must be fully relieved of duty during the commute. If an employee performs any work while traveling, that time must be paid as hours worked, regardless of how the rest of the commute is characterized.
  • Accurate timekeeping remains essential. Employers must still record all hours actually worked each day and each workweek, wherever the work is performed, and should have practices in place to capture work performed at home before or after a mid-day commute.
  • Do not confuse home-to-work travel with job-site-to-job-site travel. If an employee is traveling between two different work locations (rather than between home and a single office), that travel remains compensable.
  • Watch for employer-driven constraints. If the employer dictates the timing of a mid-day trip or imposes conditions that make the travel primarily beneficial to the employer, the "ordinary commute" characterization may not hold.

Opinion Letter FLSA2026-9 is not legally binding. It’s used by the DOL to simply demonstrate how the law applies to certain specific situations. Nevertheless, employers that allow their employees to split their workday between home and the office should review their specific practices against the facts described in the opinion and update timekeeping and scheduling policies accordingly.

Please contact Abigail W. White or any member of the Phelps Labor and Employment teams if you have questions or need advice or guidance.