When a Midday Commute Between Home and Work Stays an Unpaid Commute, According to the DOL

Your office staff want to skip rush hour by working part of the day from home. The DOL just told you exactly how to let them do it without creating a wage and hour problem.

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TL;DR: A new DOL opinion letter addresses whether letting non-exempt office employees split their workday between home and the office, so they can commute at less congested times, turns the midday travel into compensable work under the FLSA. The answer is no, as long as the employee requests the arrangement, controls the timing, and is fully off-duty during the drive itself.

📄Check out the opinion letter (FLSA2026-9) 

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An Employer Wanted Flexibility Without the Wage Exposure

On July 22, 2026, the Wage and Hour Division issued an opinion letter answering a question a lot of employers have been quietly avoiding: if non-exempt staff split their workday between home and the office, does the midday drive between locations become paid time? The employer who requested the opinion already allowed telework, but hadn’t allowed splitting a single workday between home and office, worried the travel in between could count as compensable hours under the continuous workday doctrine, which generally presumes everything between the first and last task of the day is paid.

Three Requests, One Employer Worried About Liability

The employer described three real requests from employees. One wanted to shift her commute to mid-morning and mid-afternoon to avoid rush hour, while keeping a normal 7.5-hour day. Another volunteered for extra project work, but only if she could do it early at home before her regular shift instead of coming in early or staying late. A third rode the city bus and couldn’t finish his assignments before the last bus left, so he asked to bring the work home and finish there, with overtime for the extra hours. In every scenario, the employee proposed the arrangement, and stayed completely relieved of duty during the travel itself.

The DOL Said the Commute Stays a Commute

WHD concluded none of this midday travel is compensable. An ordinary home-to-work commute isn’t paid time whether it happens before the workday, after it, or in the middle of it, so long as it’s genuinely ordinary. What makes a midday commute “ordinary” rather than compensable travel between job sites is that the employee, not the employer, decided to split the day this way and remained free to spend the travel time however they liked.

That distinction is the whole analysis. If an employer starts dictating when or how the midday travel happens, or expects the employee to keep working through it, the calculation changes, since employer-controlled travel tied to actual work loses the “ordinary commute” label.

Before rolling out a split-shift or flexible telework policy, put in writing who is actually deciding when the travel happens. That single fact drives the entire wage and hour analysis.

The Request Needs a Paper Trail, Not Just an Understanding

WHD’s conclusion turned entirely on the fact that employees asked for these arrangements. If a manager suggests or expects a split schedule, even informally, the employer has effectively taken over the decision the DOL said had to stay with the employee. Document the request in writing, even a short email, so the record shows who actually proposed the flexibility.

Off-Duty Has to Be Real, Not Just a Line in the Handbook

Fully relieved of duty means no calls, no check-ins, no expectation of availability during the drive. A policy that says employees are off-duty during a split commute means nothing if managers still ping them mid-drive about a client issue. That habit alone can convert unpaid travel into a wage claim.

This Letter Doesn’t Cover Assignment-Driven Schedules

Nothing here blesses employer-driven flexible scheduling, like a dispatcher setting when field staff hit the road. This letter is narrow: voluntary, employee-driven splits to an office-based schedule. Extending that logic to a workforce whose timing is set by the business, not the employee, is a different question, one the DOL addressed in a companion letter issued the same day. More on that tomorrow.

The DOL handed employers a genuinely useful yes, but a conditional one. The moment a manager starts nudging when that midday drive should happen, the “ordinary commute” label goes with it, and the exposure the policy was designed to avoid shows back up.