Midday Remote Work Just Got a Boost

Employers concerned about Fair Labor Standards Act (FLSA) rules may feel empowered to grant midday remote work following a recent U.S. Department of Labor (DOL) opinion letter. That’s because the DOL found that an ordinary commute between work and home to telecommute was not compensable work time.

Any time employees spend traveling between their home and their primary worksite within a workday may be excluded from recorded work time, so long as such travel is otherwise a normal or ordinary commute that primarily benefits the employee, the DOL stated in FLSA2026-9.

“While 2026-9 is not a controversial interpretation of the FLSA by any stretch, and is well in line with how I think most everyday people would assume the law works, the impact on workplace policies and flexibility could be huge,” said Claire Deason, an attorney with Littler in Minneapolis. 

“I’d expect that 2026-9 will provide a good amount of security for employers who, like the employer who submitted the request, were hesitant to embrace more flexibility with remote work for their nonexempt workforces because they were concerned about the potential cost and risk of compensating for travel time between home and office,” Deason added. “With the DOL’s assurance that commutes between home and work mid-workday are still, in fact, commutes, I anticipate many employers will be more open to nonexempt workers dividing their day between home office and workplace for flexibility. It’s a really great result for employee-friendly flexibility.”

According to the SHRM 2026 Employee Benefits Survey, 45% of employers offer flextime during core business hours.

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Opinion Letter on Midday Telework

An employer with a large workforce of nonexempt employees who do not regularly travel as part of their job duties inquired whether midday commuting time to telework after being in the office would be compensable. 

In recent years, the employer has allowed many of its employees to work remotely at home, but has not permitted them to work in more than one location — such as in the office and then at home — in a single workday. The employer was concerned that by letting employees commute to or from the office or to work at home before or after their typical commute for their convenience, the commuting time itself might be deemed compensable.

The DOL informed the employer that such time would not be compensable.

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Three Scenarios

The employer asked for guidance on whether midday commuting would be compensable in the following three scenarios:

• Scenario 1. A nonexempt employee is scheduled to work 9 a.m. to 5 p.m. and typically commutes to the office from 8 a.m. to 9 a.m., and home from 5 p.m. to 6 p.m. Driving two hours daily is not ideal for the employee, who wants to avoid rush-hour traffic by commuting between 10 a.m. and 10:30 a.m. and 3 p.m. and 3:30 p.m., reducing the total drive time by an hour. The employee requests to work at home from 8 a.m. to 10 a.m. before driving to the office, and from 3:30 p.m. to 5 p.m. after returning from the office. The employee takes a 30-minute lunch break at noon regardless of their location, so either arrangement results in the employee working a typical schedule of 7.5 hours.
• Scenario 2. A nonexempt employee volunteers to work additional hours for a special project that is short-staffed. However, the employee is only interested in the work if the employee can perform the additional work during the early hours of the morning before leaving for the regular shift at the office, instead of arriving at the office early or staying late.
• Scenario 3. A nonexempt employee uses the city bus to commute to and from the office and is unable to complete their day’s work before the last bus leaves for the day. The employee asks the employer for permission to bring their work home to complete the work upon arriving home, with overtime hours.

The employer asked the DOL to assume that these employees are fully relieved of work-related tasks during their midday travel, that the travel time at issue is for 20 or more minutes, and that the employer and employees have appropriate timekeeping policies and practices to capture and record all work time, regardless of the work location.

“We concluded that the home-to-work (or work-to-home) travel in all three of the scenarios you described would not qualify as FLSA-covered ‘work,’ as the facts provided indicate that such travel time would be an ‘ordinary’ commute that is a normal incident of employment and thus primarily benefits the employee,” the DOL said. “We take this opportunity to clarify that, as a general matter, an ‘ordinary’ or ‘normal’ commute represents a third category of time, in addition to off-duty time and bona fide meal breaks, that is not work time even if it occurs during the continuous workday.”

While avoiding rush hour traffic would significantly reduce the employee’s overall commute time in Scenario 1, it isn’t necessary for a midday commute to reduce commute time to be considered ordinary or normal, the DOL explained. “Instead, it suffices that the timing of such commuter travel is genuinely voluntary, as employees might have any number of reasons to adjust the timing of their daily commutes,” the DOL said. 

These reasons might include staying at home for part of the workday due to a sick child or a visit from a maintenance worker. “Because optional midday commuter travel allows employees to accommodate such personal needs, it can benefit employees as much or more than commuter travel which occurs at the beginning or end of the workday,” the department said.

In Scenario 2, the DOL’s conclusion did not depend on the fact that the additional morning work was voluntary. “[O]n any particular workday, an employer could require an employee to arrive at the office earlier than usual or stay later than usual for extra work, and although such a scheduling demand would both increase the employee’s compensable hours worked and affect the timing of the employee’s commute, the commute would not be compensable work time,” the DOL stated.

The opinion letter did not decide that all midday travel is noncompensable, noted Russell Bruch, an attorney with Morgan Lewis in Washington, D.C. The DOL expressly preserved the established rules that:

• Travel from one worksite to another during the workday generally is compensable.
• Work performed while traveling is compensable.
• Rest breaks of approximately 20 minutes or less remain compensable.
• Travel between home and work may be compensable when it is extraordinary, is dictated by the employer, or otherwise primarily benefits the employer rather than the employee.
• Other gaps in the continuous workday generally remain compensable unless they qualify as an ordinary commute, a bona fide meal period, or off-duty time.

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Another Opinion Letter

In a separate opinion letter (FLSA2026-10), the DOL determined that time spent receiving pages is not compensable hours worked as it is incidental to a field service engineer’s use of an employer-provided vehicle for commuting. In reaching this determination, the DOL cited the Employee Commuting Flexibility Act, which in 1996 amended the Portal-to-Portal Act.

In contrast, the DOL found that time spent calling clients to schedule appointments and scheduling other field service engineers is compensable hours worked as it is not incidental to the commute. Instead, it is integral and indispensable to the principal work activities of installing and servicing equipment at client sites, the DOL stated.

“I’d expect that 2026-10 will lead employers to review and consider their operations practices with respect to pre-travel activities for workforces like technicians, [and] field service engineers,” Deason said. “It’s important to know that required activities that constrain an employee so much that they cannot use their time effectively for their own purposes could likely be compensable, and that could impact what the rest of the workday requires in terms of hourly pay.”