Last Updated on August 31, 2026 by MyHRConcierge

The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) has provided welcome clarification for employers seeking to offer greater flexibility to non-exempt employees. In Opinion Letter FLSA2026-9, issued July 22, 2026, the WHD addressed whether travel between an employee’s home and regular workplace is compensable when the employee works from both locations during the same workday.

The answer: A mid-day commute can remain non-compensable ordinary travel- even when an employee performs compensable work at home before or after the trip- provided the arrangement is voluntary and primarily benefits the employee.

For employers that have been hesitant to provide hourly employees with the same hybrid flexibility available to exempt workers, this guidance may open the door to additional scheduling options. However, the opinion letter also makes clear that employers need appropriate guardrails around timekeeping, employee choice, and work performed during travel.

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Why the Guidance Matters

Under the Fair Labor Standards Act (FLSA), employers generally do not have to compensate employees for ordinary travel between home and work. Conversely, travel between worksites during the workday generally is compensable because it is considered part of the employee’s work. The challenge for employers has been determining where a split home-and-office workday fits within those rules.

For example, an employee might work from home in the morning, commute to the office late in the morning, work at the office for several hours, and then return home to finish the workday. Because the employee has already performed work before commuting, employers could question whether the home had effectively become a second worksite and whether the travel therefore needed to be paid.

FLSA2026-9 provides greater clarity: The fact that an employee performs work at home does not automatically transform the employee’s home into a worksite for purposes of determining whether the commute is compensable.

The DOL’s Three Scenarios

The opinion letter considered three different situations involving non-exempt employees who voluntarily split their workday between home and the office.

In the first scenario, an employee wanted to work from home in the morning, commute to the office after the morning rush, and later return home before evening rush-hour traffic. The timing of the commute was chosen by the employee for personal convenience.

The second involved an employee who volunteered to perform additional project work from home before traveling to the office for the employee’s regular work schedule.

In the third scenario, an employee wanted to leave the office in time to catch the last available public transportation home and complete remaining work after arriving home.

Although the circumstances differed, WHD reached the same conclusion in each situation. The travel remained ordinary home-to-work or work-to-home commuting because it was voluntary, primarily benefited the employee and the employee was not performing work while traveling.

A Mid-Day Commute Can Still Be an “Ordinary” Commute

One of the most significant aspects of FLSA2026-9 is WHD’s clarification that an ordinary commute does not automatically become compensable simply because it occurs after an employee has started working.

The DOL characterized ordinary home-to-work travel occurring during the workday as a third category of non-compensable time, alongside bona fide meal periods and off-duty time. In other words, the continuous workday does not automatically turn every minute between an employee’s first and last work activities into compensable time.

This distinction is important for employers considering flexible schedules. An employee can have paid work time, followed by an ordinary unpaid commute, followed by additional paid work time, without necessarily making the commute compensable.

The determining factor is not simply when the employee travels. Employers should instead consider why the employee is traveling, who controls the arrangement and whether the employee is free from work obligations during the trip.

Voluntary Flexibility Is Key

The employee’s choice is an important component of the DOL’s analysis. When an employee voluntarily requests to work from home for part of the day and adjusts the timing of the commute for personal convenience, the travel may retain the characteristics of ordinary commuting. The employee could be seeking to avoid traffic, accommodate personal circumstances or otherwise structure the workday in a way that primarily benefits the employee. That is different from an employer requiring an employee to travel from home to another location at a particular time because of business needs. 

The companion Opinion Letter FLSA2026-10 illustrates this distinction. In that situation, the DOL found travel could become compensable where an employee was required to perform substantial work immediately before traveling to the first job site and the employer dictated the timing and manner of the trip. The more an employer controls the timing and purpose of the travel, the greater the need to evaluate whether the travel is actually compensable work time.

Working From Home Does Not Automatically Create a Second Worksite

Another important takeaway is that performing work at home does not, by itself, turn an employee’s home into a second job site.

Employees covered by FLSA2026-9 may perform compensable work from home and still have an ordinary, non-compensable commute to or from the office. The work performed at home must still be recorded and paid, but the commute may remain outside compensable hours when the relevant conditions are satisfied.

This distinction gives employers more flexibility to accommodate split schedules without automatically treating every trip between home and the office as worksite-to-worksite travel.

The Guardrails Employers Should Keep in Place

Although the DOL’s guidance is favorable, employers should not interpret it as a blanket exemption for every mid-day commute. Employers considering split schedules for non-exempt employees should establish clear policies and practices.

• Maintain Accurate Timekeeping: All compensable work must continue to be recorded, regardless of where the work occurs. Employees who work from home before or after traveling to the office must accurately record those hours. Employers should make sure their timekeeping systems can accommodate work performed at multiple locations and reinforce that employees must report all time spent performing work. The DOL has consistently emphasized that travel that is part of an employee’s principal activities can constitute hours worked.
• Keep the Commute Work-Free: The employee should be completely relieved from work responsibilities during an ordinary commute. If an employee responds to work emails, participates in calls, performs job duties or otherwise engages in compensable work while traveling, that work time must be compensated. Employers should therefore avoid policies or practices that encourage employees to work while commuting.
• Document Employee Requests: Because voluntariness is an important part of the DOL’s analysis, employers may want to document requests for split schedules. A written request can establish that the employee- not the employer- initiated the arrangement and that the schedule was provided as a flexibility option. Documentation can also help managers consistently distinguish voluntary split schedules from employer-directed travel.
• Distinguish Commuting From Business Travel: The guidance does not change the general rule that travel between worksites during the workday is compensable. For example, an employee who travels from the employer’s office to a client location as part of the employee’s duties generally is engaged in compensable travel. Likewise, special assignments and other employer-directed travel may be treated differently from an ordinary commute. Employers should therefore evaluate the purpose and circumstances of each type of travel rather than applying a blanket “commutes are unpaid” rule.
• Review State and Local Requirements: FLSA2026-9 addresses federal wage-and-hour law. Employers should also consider applicable state and local requirements, which may impose different or more protective standards concerning travel time, timekeeping, or remote work. A policy that complies with the federal FLSA is not necessarily sufficient for every jurisdiction in which an employer operates.

What Employers Should Take Away

FLSA2026-9 provides employers with greater confidence to offer flexible work arrangements to non-exempt employees. A voluntary split schedule does not automatically make the employee’s mid-day commute compensable simply because the employee performs work from home before or after traveling to the office.

However, flexibility should not come at the expense of wage-and-hour compliance. Employers should focus on several key questions:

• Did the employee voluntarily request the split schedule?
• Is the arrangement primarily for the employee’s benefit?
• Is the employee completely relieved of work during the commute?
• Is all work performed at home or elsewhere accurately recorded?
• Is the travel ordinary commuting rather than travel between job sites?
• Is the employer avoiding practices that dictate the timing or manner of the employee’s commute?
• Are applicable state and local requirements also being satisfied?

When the answers support an ordinary commute, employers may have considerably more flexibility in allowing non-exempt employees to divide their workday between home and the office.

A More Flexible Approach to Hourly Work

The modern workplace increasingly relies on flexibility as a tool for recruitment, retention and employee satisfaction. Historically, wage-and-hour uncertainty has made some employers reluctant to extend hybrid arrangements to hourly employees.

The DOL’s July 2026 guidance provides a clearer framework for navigating that issue: employers do not necessarily have to choose between providing flexibility and maintaining compliance. With appropriate policies, accurate timekeeping, and careful attention to who controls the arrangement, employers may be able to give non-exempt employees more flexibility in where they perform their work.

For more information on how to enhance your organization’s compliance efforts, contact MyHRConcierge at 855-538-6947, sales@myhrconcierge.com. Or, schedule a convenient consultation below.

This article is for informational purposes only and does not constitute legal advice.