DOL Gives Employers a Green Light, With Guardrails, to Let Non-Exempt Employees Split Their Workday Between Home and Office

Employers have generally understood two Fair Labor Standards Act (FLSA) rules: (1) an employee's normal start- or end-of-day commute is not compensable (29 C.F.R. § 785.35), and (2) travel between job sites during the workday is compensable (29 C.F.R. § 785.38). What remained unclear was whether an employee's home becomes a "job site" once actual work is performed there, converting any mid-day commute into paid travel.

This ambiguity led many employers to prohibit non-exempt employees from splitting their workday between home and the office, even when employees wanted that flexibility. FLSA2026-9 addresses this issue directly.

WHD analyzed three scenarios involving non-exempt employees who voluntarily travel between home and the office mid-day:

• Rush-hour avoidance: An employee scheduled to work 9:00 a.m. to 5:00 p.m. requests to commute mid-day (10:00 a.m. to 10:30 a.m. and 3:00 p.m. to 3:30 p.m.) to avoid rush-hour traffic, working from home in the morning and evening.
   
• Voluntary project work: An employee volunteers to work additional hours for a special project but requests to perform the work from home during early morning hours before her regular commute, rather than arriving at the office early or staying late.
   
• Public transit constraint: An employee who commutes by city bus is unable to complete his day's work before the last bus leaves. He asks to catch the last bus and complete his assigned work (including overtime) upon arriving home.

In all three scenarios, WHD assumed the employees were fully relieved of work-related tasks during their mid-day travel and that the employer had appropriate timekeeping policies to capture all worktime regardless of location. On those facts, WHD concluded that the commute remained non-compensable because it was voluntary and primarily benefited the employee rather than the employer.

Key Doctrinal Point

WHD expressly recognized "ordinary" home-to-work travel occurring during the workday as a third category of time that is not "hours worked," standing alongside bona fide meal periods (29 C.F.R. § 785.19) and off-duty time (29 C.F.R. § 785.16). This is a standalone exclusion from the continuous workday rule; a mid-day commute does not need to independently satisfy the "off-duty" test to be unpaid.

WHD clarified that a commute need not shorten the employee's travel time or be paired with a personal appointment (such as a doctor's visit or parent-teacher conference) to qualify as "ordinary." The controlling question is whether the timing of the trip was the employee's choice and primarily serves the employee's convenience. There is no minimum time threshold: a mid-day commute of any length remains unpaid so long as it is genuine and voluntary.

WHD also emphasized that (1) travel from job site to job site during the workday remains compensable (29 C.F.R. § 785.38), and (2) any work performed while traveling must be paid (29 C.F.R. § 785.41). An employee's home does not become a "job site" merely because compensable work happens there before or after the commute.

Practical Implications for Employers

Many employers have been reluctant to offer split schedules to non-exempt employees due to uncertainty about whether mid-day commutes would be compensable. FLSA2026-9 confirms that extending such flexibility to non-exempt employees, when the arrangement is voluntary and primarily for the employee's benefit, does not convert the commute into paid time. This opens the door for employers to offer scheduling flexibility that has become a key recruitment and retention tool.

The opinion letter is favorable but comes with compliance obligations. Employers should take the following steps to ensure compliance:

• Maintain rigorous timekeeping: Employers must record all hours worked each workday and workweek, regardless of location (29 C.F.R. § 516.2(a)(7)). The opinion letter's conclusions assumed appropriate timekeeping policies were in place to capture all worktime.
   
• Document voluntariness: The commute must be initiated by, and primarily benefit, the employee. An employer-mandated split shift could be treated as compensable job-site-to-job-site travel. Employers should require a written employee request memorializing the employee's initiation of the split schedule.
   
• Ensure no work during commute: Any work performed during the commute is compensable and will taint the exclusion. The opinion letter assumed employees were "fully relieved of work-related tasks" during mid-day travel.
   
• Distinguish from compensable travel: This guidance does not apply to travel between two employer work locations (which remains compensable under 29 C.F.R. § 785.38), emergency call-outs, or special one-day assignments in another city (addressed under 29 C.F.R. §§ 785.36-.37).
   
• Review companion letter: WHD also issued Opinion Letter FLSA2026-10 (July 22, 2026), addressing circumstances in which employer-dictated timing can make mid-day travel "not ordinary" and therefore compensable.
   
• Understand reliance limits: This opinion letter may be relied upon under Portal-to-Portal Act § 10 (29 U.S.C. § 259) as a good-faith defense, but courts retain ultimate authority to interpret the FLSA independently. FLSA2026-9 addresses only federal law; employers should confirm that no state or local rules impose stricter standards.

Baker Donelson attorneys are actively monitoring developments in this area. For questions or more information about this issue, please contact a member of the Firm's Labor & Employment Group.