DOL Clarifies Midday Commute During Split-Shift Telework is Not Compensable Time

For years, human resources departments have faced a structural trap when trying to offer flexible schedules: the Fair Labor Standards Act's "continuous workday" doctrine. If an hourly employee starts their morning answering emails at home, drives to the office at 10:30 a.m. to avoid rush hour, and finishes the afternoon at their desk, that midday transit time technically falls between their first and last principal activities of the day. For employers, this raised the risk that granting a flexible split-shift would inadvertently convert an unpaid commute into compensable work time, exposing the company to back-pay liability.[1][3]

The U.S. Department of Labor has now resolved that tension, issuing a formal opinion letter that creates a clear safe harbor for voluntary midday commutes. In Opinion Letter FLSA2026-9, the Wage and Hour Division clarified that when an employee chooses to split their workday between home and the office for their own convenience, the travel between those locations remains an ordinary, non-compensable commute.[2][4]

The guidance addresses a specific but increasingly common scenario in the hybrid work era. In the primary example evaluated by the agency, a nonexempt employee scheduled to work from 9:00 a.m. to 5:00 p.m. requests to shift their commute to off-peak hours. Instead of battling 8:00 a.m. traffic, the employee works from home for two hours, drives to the office mid-morning, and later returns home to finish the final hours of their shift.[2][4]

According to the Department of Labor, this arrangement primarily benefits the employee by allowing them to avoid congestion and manage personal obligations. Because the travel is genuinely voluntary and the employee is fully relieved of duties during the drive, the agency concluded that the transit time does not count as hours worked.[1][6]

"An ordinary home-to-work commute isn't paid time whether it happens before the workday, after it, or in the middle of it, so long as it's genuinely ordinary," noted legal analysts reviewing the decision. The critical distinction rests entirely on who initiates the schedule split. If the employer mandates the midday travel or requires the employee to perform tasks while in transit, the continuous workday doctrine still applies, and the time must be paid.[3][4]

The agency simultaneously issued a companion directive, Opinion Letter FLSA2026-10, addressing field service workers who do not have a fixed office. This second letter clarified that briefly receiving electronic assignments at home before driving to a first worksite does not convert the subsequent commute into compensable time.[1][6]

However, the Department of Labor drew a sharp line between passively receiving a schedule and actively performing administrative work. If a field technician spends time at home calling clients to coordinate arrival times or scheduling other engineers before getting into their vehicle, that pre-shift activity is considered integral to their job. In those cases, the subsequent drive to the first customer location becomes compensable travel between worksites.[1][6]

Employment attorneys are advising companies to audit their remote work policies to ensure compliance with the new framework. The primary recommendation is to document that any split-shift arrangements are initiated by the employee rather than mandated by management. State-level regulations also remain a factor; legal experts note that states like California often apply stricter tests regarding employer control that could supersede the federal guidance.[3][5]

The ruling is expected to accelerate the adoption of asynchronous and split-schedule models for hourly and nonexempt staff, a demographic that has historically been excluded from the flexibility afforded to salaried knowledge workers. By removing the threat of wage-and-hour litigation over off-peak commuting, the Department of Labor has effectively lowered the regulatory barrier to hybrid work for millions of hourly employees.[1][2]