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.

Want to Learn More About Compensable Time? Listen to the MyHRBuzz Podcast

In this episode of the MyHRBuzz Podcast, Chris Cooley and Emily Frederick, SHRM-CP, break down what counts as compensable time under the FLSA and what employers need to consider when tracking employee work time. The discussion covers time rounding, PPE, training, meal breaks, travel time and hybrid work. This podcast episode provides practical insights to help employers navigate wage and hour requirements and ensure employees are properly paid for all time worked.

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.