New DOL Opinion Letters Offer Employer Steerage on Compensable Travel Time

Takeaways

• Two DOL opinion letters clarify how “mid-day” commuting for hybrid staff who voluntarily cut up their workday shouldn’t be compensable journey time.
• Travel time turns into compensable when the employer, quite than the worker, controls the timing and requires substantial work instantly earlier than and after the commute.
• The opinion letters present an in depth historical past of the evolution of what’s thought of “work” underneath the FLSA.

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A current pair of Department of Labor (DOL) opinion letters issued by the Wage and Hour Division (WHD) talk about when worker journey between house and work counts as compensable “hours worked” underneath the Fair Labor Standards Act (FLSA). The letters handle comparable factual eventualities, however they attain completely different conclusions as as to if the time is compensable. It is essential for employers to grasp the reasoning behind these outcomes.

The opinion letters additionally present an in depth historical past of the evolution of what’s thought of “work” underneath the FLSA.

Mid-Day Commuting is Not Compensable

FLSA2026-9 considers non-exempt staff who wish to cut up their workday between house and workplace. The employer doesn’t enable staff flexibility to start their commute after the morning rush (and make money working from home previous to commuting) or start their commute house earlier to keep away from the night rush as a result of the employer fears that it must pay staff for the time spent of their mid-day commute underneath the “continuous workday” precept, for the reason that commute started after the workday started and previous to the workday ending. The employer posed the query whether or not a “mid-day” commute requested by the worker to keep away from rush hour visitors can be compensable time.

WHD concluded this journey stays an “ordinary” or “normal” commute and, due to this fact, shouldn’t be worktime though it occurs in the midst of the continual workday and predominantly advantages the worker quite than the employer. Travel in the midst of the continual workday would usually be compensable as a result of the timing of the journey is voluntary and pushed by the worker’s personal preferences (avoiding visitors, working round a sick baby, and so forth.)

With this opinion letter, WHD formally acknowledges a “third category” of time that’s non-compensable though it happens through the steady workday. (Off-duty time through the workday and bona fide meal breaks are also non-compensable.)

Travel Time Following Pre-Commute Work is Compensable

The situation described in FLSA2026-10 includes a discipline service engineer who travels to purchasers as a part of his duties. He has no fastened workplace and spends as much as an hour every morning receiving pages and calling purchasers (and generally different engineers) to schedule service appointments earlier than leaving house for his first shopper appointment in an employer-provided automobile.

The engineer’s cellphone calls to schedule appointments are compensable, the letter advises, as a result of the calls are integral and indispensable to the engineer’s principal job of putting in and servicing gear. The engineer’s journey time can also be compensable as a result of the worker is required to carry out substantial work (scheduling calls) instantly earlier than the drive and once more instantly after arriving on the first job website. A key issue is that the timing and method of the journey are dictated by the employer quite than chosen by the worker. The letter identified that if the employer didn’t require the worker to carry out this work instantly previous to journey, the end result is likely to be completely different.

DOL additional finds receiving pages is not compensable, nevertheless, as a result of the duty is merely “incidental” to utilizing an employer-provided automobile for commuting underneath the Employee Commuting Flexibility Act.

Reconciling the Letters

Both letters apply the identical primary-beneficiary take a look at however attain reverse outcomes.

In FLSA2026-9, the worker chooses when to journey and isn’t performing employer-directed work instantly adjoining to the drive, so the journey stays an “ordinary” commute and is unpaid.

In FLSA2026-10, the employer dictates the schedule and requires work instantly earlier than and after the drive, which makes the following journey compensable time. Those mixed components eradicate the pliability that usually defines an “ordinary” commute.

Practical Takeaways

These opinion letters are useful to employers who wish to supply staff extra flexibility with commuting instances however don’t wish to incur the danger that the commute is compensable work. The steerage is very useful for employers that retain discipline service or touring staff, or make the most of versatile or hybrid schedules, or take-home work insurance policies.

Remember, nevertheless, some state legal guidelines impose stricter necessities than federal legislation concerning what constitutes compensable work and when journey time is compensable.

Opinion Letters

DOL opinion letters supply helpful steerage on how the company could apply the FLSA in particular conditions. An opinion letter could be a precious protection for an employer to keep away from a discovering of a “willful” violation of the FLSA in a lawsuit associated to the matter addressed within the steerage on which it relied. Employers can evaluate opinion letters and submit requests on the DOL Opinion Letters page.

Reach out to your Jackson Lewis legal professional when you’ve got questions concerning the opinion letters or for help in making ready an opinion letter request to your group.