On July 22, 2026, the U.S. Department of Labor’s Wage and Hour Administrator issued two Opinion Letters. The letters focus on a common issue facing employers today: when travel involving nonexempt remote or hybrid employees must count as hours worked and thereby are compensable under the Fair Labor Standards Act (FLSA).
Although Opinion Letters are not binding law, they explain how the Department of Labor construes the FLSA and therefore provide valuable guidance to employers. Importantly, when employers rely on opinion letters, in lawsuits asserting FLSA violations on the issues covered by the Opinion Letters, they will be immune from liability for back overtime pay and liquidated damages even if a court ultimately disagrees with the Administrator’s opinion.
Mid-Day Travel Between Home and the Office
The first Opinion Letter (FLSA2026-9) addresses the scenario of a hybrid employee who begins the day working from home, later travels to the employer’s office, performs additional work there, and then ends the workday. In this Opinion Letter, the Administrator addressed whether the trip from the employee’s home to the office in the middle of the day must be treated as compensable work time under the “continuous workday” travel doctrine.
The Administrator emphasized that the employee could have chosen to perform all of the day’s work at the office and made the normal commute before starting to work. Instead, the employer allowed the employee to work at home for part of the day, as a convenience extended to the employee. The mid-day trip simply replaced what otherwise would have been the employee’s ordinary commute. Because the travel was voluntary and substituted for unpaid commuting time, it remained non-compensable. The same holds true in reverse, such as when an employer allows an employee to leave the office early to avoid rush hour, to catch a bus, or to pick up children, with the understanding that the employee will complete the workday later while at home.
The Administrator, however, stressed that the result depends on the specific facts. If the employer requires an employee to travel during the workday for business reasons—such as traveling from one worksite to another—then the travel generally remains compensable. The Administrator’s conclusion applies only where the employee voluntarily chooses to split the workday between home and the office, and the travel merely replaces the employee’s normal commute.
For employers, the Opinion provides welcome guidance for hybrid work arrangements. At least for so long as a court does not reject the Administrator’s Opinion, or until it is superseded by another Administrator’s Opinion, employers may permit employees to work part of the day remotely without automatically converting an ordinary commute into paid working time, provided the arrangement fits the circumstances described in the Opinion.
Home-Based Mobile Employees (Employees With No Fixed Worksite)
The second Opinion Letter (FLSA2026-10) considers nonexempt employees who have no fixed worksite. These employees typically receive their daily assignments electronically while at home and then communicate with their customers or coworkers to schedule appointments or discuss work-related issues before driving to their first appointments.
In general, the workday begins when employees perform the first principal activity for their jobs, that is, the first activity that is integral and indispensable to doing the jobs for which they are employed. Applying this to the circumstances described in the Opinion Letter, the workday began before the drives to the first client, and therefore, the drive became a part of the continuous workday and must count as compensable work time.
The Administrator distinguishes between simply commuting to work and performing actual job duties before leaving home. If an employee merely gets dressed, gathers personal belongings, and drives to the first work location, then the travel is ordinarily unpaid commuting time. The same holds true for the nominal time needed to merely receive the electronically communicated assignments. However, once the employee begins performing required job functions—such as making business calls, responding to work communications, scheduling appointments, or completing other assigned tasks—the compensable workday starts. Employers generally must treat the time employees spend on those activities, and the travel that follows, as compensable.
This Opinion is particularly important for employers with mobile workforces, including home health providers, technicians, inspectors, service personnel, and others who regularly travel from home to customer locations. Employers should carefully evaluate whether employees are performing work before leaving home and ensure that their timekeeping practices accurately capture compensable work time.
Overall Takeaways
For employers, these Opinion Letters highlight several practical precautions to consider, such as the need to:
- Review hybrid work policies to determine when home-to-office travel is voluntary versus required;
- Examine whether employees perform work before leaving home, particularly those with mobile or field-based jobs;
- Ensure timekeeping systems capture compensable pre-travel work and any travel that occurs after the workday has begun; and
- Train supervisors not to require off-the-clock tasks, such as scheduling appointments or responding to work communications, before employees record the start of their workday.
As remote and hybrid work continue to evolve, these Opinion Letters provide useful guidance for applying longstanding FLSA principles to modern work arrangements while reinforcing that small factual differences can change whether travel time must be paid.
Critically, employers that follow the guidance in these Opinion Letters should document their reliance, so that—if sued—they can establish their reliance and escape being liable for back overtime pay and liquidated damages should a court disagree with the Administrator’s Opinion. In these situations, a court may order the employer to comply with the law going forward.
Attorneys in Dykema’s Labor and Employment Law Practice Group are available to assist employers in complying with any of the FLSA’s complex and often counterintuitive requirements.