DOL Issues Opinion Letters Explaining When Commutes Are Considered Compensable Work Under Federal Law

John Agbonika, Associate

            On July 22, 2026, Wage and Hour Division (“WHD” or the “Division”) of the U.S. Department of Labor (“DOL”) issued two opinion letters[1] clarifying when commute time is compensable under the Fair Labor Standards Act (“FLSA”). The first, FLSA2026-9, holds that a midday commute between home and office remains an unpaid commute as long as the employee, not the employer, controls its timing and it is genuinely voluntary. The second opinion letter, FLSA2026-10, addresses field/dispatch employees and finds that merely receiving a work assignment is not compensable, but actively scheduling appointments or coordinating other workers is “integral and indispensable” work that starts the compensable workday.

Background

            The FLSA requires covered employers to pay at least the federal minimum wage for all hours worked, and overtime for hours worked over 40 in a workweek — but the statute never actually defines “work.”[2] The Supreme Court filled that gap in 1944, holding that whether time counts as work turns on whether it is spent predominantly for the employer’s benefit or the employee’s, based on all the circumstances of the case.[3] The WHD applies that same “primary beneficiary” test in both new letters.

            Separately, the Portal-to-Portal Act excludes from compensable time the ordinary “walking, riding, or traveling” to and from an employee’s job site that occurs before or after the workday.[4] But the Division has long recognized, independent of the Portal Act, that normal travel from home to work is not worktime — a rule that predates the Portal Act.[5]

Under the FLSA, Midday Travel Between Home and Office for the Employee’s Benefit is Likely Not Compensable Time

            The first opinion letter addresses whether an employer must pay employees for midday travel between home and the office when an employee performs work at both locations, and the midday trip is offered as a voluntary and convenient alternative to an unpaid commute that would otherwise occur before or after the shift. The WHD addressed three scenarios: an employee shifting her commute later to avoid rush-hour traffic; an employee who volunteers to do extra work at home before her regular commute; and an employee who catches an earlier bus home and finishes his work remotely rather than staying late at the office.[6]

            In each case, the Division concluded the commute was ordinary and noncompensable.[7] The letter recognizes the “ordinary” or “normal” commute as a third category of time — alongside bona fide meal breaks and off-duty time — that is not compensable even when it occurs during the workday.[8] The determining factor is not when the commute takes place, but whether it is genuinely voluntary and primarily for the employee’s benefit.[9] The WHD, however, clarified that travel between job sites during the workday remains compensable, as does any time an employee actually performs work while commuting.[10] Furthermore, home-to-work travel can still be compensable where it primarily benefits the employer—for example, travel required in emergency situations, or travel on a special assignment to another city.[11]

Receiving an Assignment while Commuting is Likely Not Compensable, but Actively Calling Clients Before Commuting or Making Calls during the Commute is Likely Compensable under Opinion Letter, FLSA2026-10

            This opinion letter addressed whether a field service engineer who installs and services equipment at client sites must be paid for time spent receiving pages from his employer, calling clients and other engineers to schedule appointments, and then driving in an employer-provided vehicle to his first appointment.

            The Division concluded that simply receiving a page or assignment is “incidental” to the use of an employer-provided vehicle for commuting under the Employee Commuting Flexibility Act, and is therefore not compensable on its own.[12] But actively calling clients to schedule appointments and coordinating other engineers primarily benefits the employer and is “integral and indispensable” to the engineer’s principal job of installing and servicing equipment.[13] Therefore, where the engineer was required to spend the majority of an hour scheduling client appointments immediately before his commute, and then travel to his first appointment at a time and in a manner primarily based on his employer’s needs rather than personal choice, the WHD concluded the drive lost its “ordinary commute” character and became compensable travel time.[14] Similarly, where the engineer begins making client calls an hour into his drive, the time between the first call and his arrival at the first job site would be compensable.[15]

Key Takeaways

            Employers must keep in mind that the above-referenced opinion letters cover federal law, i.e., interpret the FLSA, not Colorado’s own wage-and-hour law. Colorado’s Overtime and Minimum Pay Standards Order operates alongside the FLSA, and Colorado employers with hybrid or field-based workforces are exposed to both. Colorado does not follow the Portal Act and Colorado employers with staff who split days between home and the office, or with dispatch employees who start mornings with scheduling calls before hitting the road, should evaluate those situations under both federal and state law.

            From an FLSA standpoint, the opinion letters reaffirm that ordinary commutes, even midday commutes offered purely as a scheduling convenience, are generally not paid time, so long as the arrangement stays genuinely voluntary and employee-driven. But an employer that requires substantial phone and scheduling work immediately before, after, or during a commute, risks converting what looks like an ordinary commute into paid travel time.

[1] See FLSA2026-9, https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/FLSA2026-9.pdf; FLSA2026-10, https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/FLSA2026-10.pdf

[2] 29 U.S.C. §§ 206, 207(a); FLSA2026-9 at 3–4 (citing IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005)).

[3] Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944); see also Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944) (defining work in relevant part as employee time which is “primarily for the benefit of the employer and his business”), as discussed in FLSA2026-9 at 3.

[4] FLSA2026-9 at 9; FLSA2026-10 at 4; 29 U.S.C. § 254(a).

[5] FLSA2026-9 at 9–10 (citing Kuebel v. Black & Decker Inc., 643 F.3d 352, 360 (2d Cir. 2011)); 29 C.F.R. § 785.35.

[6] FLSA2026-9 at 1-2

[7] Id. at 14–16.

[8] Id. at 12–13.

[9] Id. at 15

[10] Id. at 16 (citing 29 C.F.R. §§ 785.38, 785.41).

[11] Id. at 17

[12] FLSA2026-10 at 6–7; 29 U.S.C. § 254(a)

[13] Id. at 7–8.

[14] Id. at 8–10. The Division pointed out that because the time spent on calling clients could vary from day to day and week to week, the engineer and his employer have the option to enter a “reasonable agreement” to ensure that the engineer is compensated for periods of work that are difficult to measure with exactitude. See id. at 10

[15] Id. at 11.