On July 22, 2026, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued two companion opinion letters addressing when an employee’s commute and pre-shift activities count as compensable “hours worked” under the Fair Labor Standards Act (FLSA), and offering unusual detail on how the WHD analyzes compensability.
Quick Hits
The WHD issued two companion opinion letters, FLSA2026-9 and FLSA2026-10, that together explain how it analyzes whether commute and pre-commute time is compensable under the FLSA.
The unifying test is the “primary beneficiary” analysis—time predominantly for the employer’s benefit is work, time predominantly for the employee’s benefit is not—applied to the totality of the circumstances.
FLSA2026-9 recognizes the ordinary commute as a third category of noncompensable time that can occur during the continuous workday, alongside bona fide meal breaks and off-duty time
FLSA2026-10 holds that merely receiving assignments is incidental to commuting and… Read the complete article here...
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