When and under what circumstances an employee must be paid for travel time has been a long standing Fair Labor Standards Act (“FLSA”) problem for employers, and one that we have covered several times in this blog. In 2018, we looked at Department of Labor (“DOL”) guidance addressing ordinary commuting, travel to customer locations, and out-of-town travel (DOL Explains When Employees Must Be Paid for Travel Time). We returned to the subject in 2021 when the DOL considered travel time for employees who split their workday between home and the office and, again, when a construction company faced claims that its flagger-drivers should have been paid for travel after picking up coworkers on the way to jobsites (Construction Services Company Flagged for Unpaid Employee Travel Time).

The persistent difficulty of this issue is understandable. The FLSA requires employers to pay non-exempt employees for all hours worked. But determining when an employee is actually “working” can become complicated, especially when the employee works remotely, travels to customer locations, performs duties before leaving home, or moves between home and an employer worksite during the same day.

On July 22, 2026, the DOL’s Wage and Hour Division (“WHD”) returned to this issue with two new opinion letters, FLSA2026-9 and FLSA2026-10. The DOL described the letters as companion guidance addressing commuter travel and remote work under the FLSA. Their issuance also follows the Department’s 2025 relaunch of its opinion letter program, under which WHD has focused on real-world questions involving unclear applications of existing wage-and-hour rules or issues of broader concern. Read together, the new opinion letters provide useful guidance for Virginia businesses managing hybrid work schedules, part-day telework, field employees, service technicians, and other non-exempt employees whose workday may begin at home.

The FLSA Basics: The Continuous Workday and Ordinary Commuting

Under the FLSA’s “continuous workday” doctrine, an employee’s compensable workday ordinarily runs from the commencement of the employee’s first principal work activity through completion of the employee’s last principal activity. Time falling within that period is generally compensable even when the employee is not continuously performing productive work. In contrast, ordinary commuting -- normal travel between home and work and back -- has long presented an exception to the continuous workday doctrine and generally is not compensable, while travel that forms part of an employee’s principal work activities -- travel between jobsites during the workday -- ordinarily must be counted as hours worked.

Remote work gas blurred the distinctions. If an employee starts working at home, drives to the office, and works there for the rest of the day, has the home become the first “jobsite,” making the drive to the office compensable jobsite-to-jobsite travel? Employers have understandably been cautious about allowing non-exempt employees to divide their workdays between home and the office for precisely that reason. FLSA2026-9 addresses that concern directly.

FLSA2026-9: A Mid-Day Commute Can Still Be an Ordinary Commute

The employer requesting FLSA2026-9 had a large workforce of non-exempt (eligible for overtime) office employees and had expanded telework opportunities for those employees. It nevertheless prohibited non-exempt employees from working at home and in the office on the same day because of concern that mid-day travel between the two locations might become compensable under the FLSA’s continuous workday doctrine.

The employer wanted greater flexibility. Among the examples, one employee wanted to work at home before rush hour, drive to the office later, return home before the afternoon rush, and then finish the workday at home. Another employee wanted to perform extra work from home before reporting for a regular office shift. A third employee wanted to catch the last available bus home and then complete unfinished work from home. In every scenario, the employee performed no work while traveling.

WHD concluded that the travel remained ordinary, noncompensable commuting time, helpfully clarifying that an ordinary commute constitutes a separate category of noncompensable time even when it occurs during what otherwise would be the continuous workday. Until now, the two commonly recognized exclusions from the continuous workday were bona fide meal periods and periods when an employee is completely relieved from duty. WHD has now added ordinary commuting as a third category.

The key is whether the travel remains genuinely “ordinary” commute time and primarily benefits the employee, not the employer. For example, the employee who voluntarily moved her commute to the middle of the day to avoid rush-hour traffic did not turn her home and office into two separate jobsites merely because she performed work at both locations. The scheduling flexibility primarily benefited the employee, and WHD found the commute noncompensable. WHD emphasized that the employee did not have to demonstrate that the arrangement actually shortened her commute. What mattered was that the change in timing was genuinely voluntary and allowed the employee flexibility to address personal needs or preferences. The same principle applied when an employee performed additional work at home before a regular office shift. Performing compensable work at home does not automatically transform the subsequent drive into compensable travel.

This is meaningful guidance for employers seeking to offer non-exempt employees the same kinds of hybrid flexibility that exempt employees have enjoyed for years.

FLSA2026-10 Explains When the Commute Stop Being “Ordinary”

FLSA2026-10 shows the other side of the line. The requesting employee was a field service engineer responsible for installing and servicing MRI systems at customer locations. He had no regular office. Each morning, the employer sent service requests through a paging system between 7:00 a.m. and 8:00 a.m. The engineer then called customers to arrange appointments and sometimes coordinated other engineers before driving an employer-provided vehicle to the first service location.

The WHD first distinguished between the employee merely receiving a page from the employer from the employee actually working on the assignment. Accepting the pages required only seconds and was incidental to commuting in an employer-provided vehicle under the Employee Commuting Flexibility Act. That time generally was not compensable. Calling customers, arranging appointments, and coordinating other engineers was different. Those activities directly advanced the employer’s business and were integral and indispensable to the engineer’s principal service activities. In other words, they were compensable work.

That distinction also changed the travel-time analysis. When the engineer spent most of the hour before leaving home handling customer calls and then immediately drove to his first appointment at the time and in the manner dictated by the employer, WHD concluded that the drive was no longer an ordinary commute. The employee lacked the flexibility normally associated with commuting, including meaningful choice over departure time and the ability to use the period before or during travel for personal purposes. Because the principal work activities had already begun and the resulting travel was not an ordinary commute, the travel was compensable.

The result was similar when the engineer began his drive before 7:00 a.m. and started making required customer calls at 7:00 a.m. too. The initial portion of the drive before the first call remained noncompensable commuting time. Once the employee began the required calls, however, the workday started, and the remaining travel became compensable under the facts presented.

Importantly, WHD declined to establish a bright-line rule for how many calls, how many minutes of work, or how much employer control would convert a commute into compensable time. The analysis remains highly fact-specific.

What Does This Mean for Virginia Employers?

Taken together, FLSA2026-9 and FLSA2026-10 give employers considerably more useful guidance than either letter provides standing alone. The key question remains one familiar to employers under the FLSA: Who primarily benefits from the time at issue? FLSA2026-9 confirms that a commute undertaken voluntarily for an employee’s convenience can remain unpaid even though work occurs on both sides of it. FLSA2026-10 shows that when the employer substantially controls the employee’s activities, timing, and travel, what looks like a commute may become part of the workday.

Employers can generally offer non-exempt employees flexible split-day arrangements without automatically paying for the commute between home and the workplace. Working from home before or after the commute does not, by itself, convert the employee’s home into a jobsite or turn ordinary commuting into compensable travel.

On the other hand, employers should be more cautious when they control both the employee’s travel and the work immediately surrounding it. Requiring an employee to spend substantial time making customer calls, coordinating personnel, performing dispatch functions, or completing other principal activities immediately before or during a drive can start the continuous workday and may cause the subsequent travel to lose its character as an ordinary commute.

Timekeeping policies should reflect that distinction. Employers also should make sure supervisors understand that seemingly small expectations imposed on employees before or during a commute can create compensable time. FLSA2026-10 additionally notes that when employees perform variable amounts of work at home that are genuinely difficult to measure, a reasonable written agreement between the employer and employee under 29 C.F.R. § 785.23 may sometimes provide a practical method for determining compensable time.

For Virginia employers, FLSA2026-09 and FLSA2026-10 provides welcome flexibility, but not a free pass. Hybrid-work and field-service policies should define when employees may work remotely, prohibit unauthorized work while driving, accurately capture compensable work performed at home or in transit, and avoid assumptions that every trip labeled a “commute” is necessarily unpaid.

If you have questions about employee travel time, hybrid-work arrangements, or other FLSA wage-and-hour compliance issues, including overtime and employee classifications, please contact Doug Taylor at Bean, Kinney & Korman, P.C.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.