DOL Opinion Letters Address Hybrid Worker Travel and Pre-Shift Work: California Employer Takeaways
On July 22, the U.S. Department of Labor’s Wage and Hour Division issued two new opinion letters addressing questions that have become increasingly common in today’s remote-work reality: when does commuter travel for hybrid workers become compensable time, and when does pre-shift work trigger the start of compensable hours?
The New Opinion Letters
FLSA2026-9: Mid-Day Commuting for Hybrid Workers
The first opinion letter tackles a fact pattern familiar to many employers with flexible work arrangements: an employee who, for personal convenience, requests to start and end the workday from home to avoid rush hour traffic – commuting to and from the office midday instead. The DOL opined this type of mid-day travel does not constitute compensable time:
Generally, travel from home to work before the workday begins, and from work to home after it ends, is considered a “regular commute” that is not compensable.
Per the DOL, an ordinary home-to-work or work-to-home commute “is not considered work under the FLSA” whether it occurs before, after, or within the workday.
Note, however, that if mid-day travel is not “ordinary” – because it primarily benefits the employer rather than the employee for example – it may still be compensable.
The practical effect: employers with hybrid arrangements where employees voluntarily split time between home and the office need not treat mid-day commutes as compensable worktime, provided the arrangement is at the employee’s request. Note, however, other travel during the workday – such as travel from job site to job site, or from the office to a job site and back- remains compensable time.
FLSA2026-10: Field Employees
The second opinion letter issued on July 22 addresses compensable time for field workers. This opinion letter involved a field service engineer who installs and services MRI systems at client locations, has no fixed office, and drives an employer-provided vehicle. Each morning between 7:00 and 8:00 a.m., the engineer receives service request pages and then calls clients to schedule appointments – sometimes from home before leaving, and sometimes while driving to the first job site.
Per the DOL the “minimal time” spent accepting pages (approximately 15 seconds each) is excluded from compensable hours worked, whereas calling clients to schedule appointments is compensable time.
California employers beware: Under California law, any time an employee is subject to the employer’s control, that time must be recorded and paid. Further, the “minimal time” concept (also known as de minimis) is no longer recognized in California and was officially rejected by the California Supreme Court in Troester v. Starbucks Corporation.
In other words, California employers should not follow the guidance provided in FLSA2026-10. Notably, employers who have field employees should also be aware that while traveling to different job sites is considered an expectation of the job, traveling to a distant worksite may be considered compensable travel time.
Sue M. Bendavid and Tal Burnovski Yeyni are Litigation and Employment Defense Attorneys at Lewitt Hackman.