The U.S. Department of Labor (DOL) has issued two opinion letters addressing whether employees who perform work at home are entitled to pay for mid-day travel to their office or to a client location. Based on the facts cited in the first letter, the DOL determined that no pay was due under the federal Fair Labor Standards Act (FLSA), but it reached the opposite conclusion for most of the travel time described in the second letter.
The DOL’s regulations at 29 CFR 785.38 state, “Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.” The question for the DOL was whether working from home for a few hours and then traveling to the office or to a client site counted as traveling “from job site to job site during the workday.”
Not compensable (DOL opinion letter FLSA2026-9): The DOL said that if home-to-work travel is “ordinary” and if mid-shift travel between home and work primarily benefits the worker, the employer doesn’t have to pay for the travel time. The DOL analyzed the following scenarios for nonexempt (overtime-eligible) office workers and determined that the employer didn’t have to pay for this time spent commuting between home and the office:
- To avoid rush-hour traffic, an employee asked to work from home at the beginning and end of their usual shift, so their commute time to the office occurred at mid-morning and mid-afternoon.
- An employee volunteered to work on a special project that was short-staffed, but only if they could do the extra work early in the morning at home instead of arriving at the office early or staying late. (The DOL said it would reach the same conclusion even if the early work at home was mandatory, because the employee’s commute between home and the office was still an ordinary commute.)
- An employee who normally rides the bus to work was unable to complete a project before the last bus was scheduled to leave for the day and asked to finish the work at home later that evening. (The DOL noted that the employer would have to pay for the travel time if the employee worked on the project while riding the bus.)
Mostly compensable (DOL opinion letter FLSA2026-10): The DOL also analyzed the job duties of a field service engineer who was responsible for installing and servicing magnetic resonance imaging (MRI) systems at client locations. Each day, the engineer drove an employer-provided sports utility vehicle from home to the first client of the day, continued on to other client appointments, and then drove home after the last client appointment. The engineer often performed a number of tasks before arriving at the first client’s location.
- The DOL determined that the very first activity, receiving work assignments (pages notifying the employee of the client schedule for the day), wasn’t compensable because it was incidental to the commute in the employer-provided vehicle. It was more convenient for the employee to receive the assignments at home than to commute to a business location to pick up the work vehicle and receive the assignments.
- However, the remaining activities performed by the field service engineer (described below) were compensable because the home-to-work travel wasn’t ordinary and it primarily benefited the employer.
- From home, after receiving the work assignments for that day, the employee typically called clients to schedule and arrange the details of appointments and to schedule other field service engineers as needed. The DOL said this activity was integral and indispensable to the engineer’s work and therefore compensable.
- After making all of the scheduling calls with clients, the employee drove from home to the first client’s location. The DOL said this wasn’t an ordinary home-to-work commute because: (1) it occurred during the workday; (2) the time and manner of the travel was primarily for the benefit of the employer; and (3) the employer required the employee to engage in substantial work before and after the travel. (The DOL said the travel from home wouldn’t have been compensable if the employee had a long window of time with significant freedom and flexibility on when to perform the administrative tasks before heading to the first client site of the day.)
- Sometimes the drive to the first client site could be quite long, so the employee left home early and made scheduling calls during the drive. The DOL said once the employee started making those calls, the travel time was compensable from that point forward because the employee was performing work. The DOL also said the employer’s policy of only paying for commute time that exceeded one hour would be fine as long as the employee didn’t begin making scheduling calls beforehand.
Tips: The general rule under the FLSA is that all activities performed during a continuous workday are compensable, but there are exceptions. The DOL’s regulations already list two of those exceptions: bona fide meal periods (typically at least 30 minutes long) and rest periods (breaks) that are longer than 20 minutes. Together, the DOL’s new opinion letters flesh out a third exception: ordinary commute time between home and work that primarily benefits the employee. For more guidance, see our Legal Guide, Compensation for Travel Time. These assessments are fact-specific, so if you’re uncertain whether to pay your employees for their travel time, contact your Vigilant Law Group employment attorney.
