July 22, 2026
U.S. DOL Clarifies Third Exception to FLSA’s Continuous Workday Rule
In an opinion letter issued today, the U.S. DOL lays out three scenarios that ask if a non-exempt employee’s commute time is compensable when it occurs (1) at the employee’s request; and (2) after the employee has already started to work from home, such as working 8:00 – 10:00 at home then driving to the office; or (3) before the employee ends his workday, such as leaving the worksite at 3:00 p.m. to drive home and then working two more hours at home.
It was often answered with an eye to the “continuous workday doctrine” that holds, “once the workday starts, all activity is ordinarily compensable until the workday ends.” In an 18-page opinion letter recounting case law and legislative history dating back to the 1940’s, the DOL clarified a “third exception” to that doctrine and answered, “No.”
What’s the rationale? The U.S. Supreme Court ruled that whether employee time constitutes “work” generally turns on “[w]hether [it] is spent predominantly for the employer’s benefit or for the employee’s . . . [according to] all the circumstances of the case.” Granting an employee’s request to drive to the office after work from home has already begun, or leaving early and finishing work at home is more for the benefit of the employee who requested it (although the employer hopefully reaps the reward of positive employee relations). Thus, “ordinary” or “normal” commute is not worktime even if it occurs during the continuous workday similar to a bona fide meal period or off-duty time (the other two exceptions).
The second letter, only 12 pages, clarifies what constitutes an “ordinary” and non-compensable commute when (1) a non-exempt employee drives an employer-provided vehicle to field assignments; and (2) receives pages and makes client calls to schedule the workday before or during that drive.
Here’s the skinny. If the activity is not compensable if it is performed while driving one’s own vehicle, it does not become compensable solely because the employee is driving the employer’s vehicle. In addition, in accordance with the Employee Commuting Flexibility Act (ECFA), activities incidental to the use of that vehicle for commuting, are also not considered “principal activities” or compensable under the FLSA.
This employee estimated it took about 15 seconds to receive a page. The pages were incidental to driving the vehicle, e.g., determining where he needed to drive each day. They were also to the benefit of the employee, so he did not have to drive to a central location to get his work assignment.
He estimated he took 10-15 minutes per call to talk to clients and schedule appointments. This was not incidental to driving but “integral and indispensable” to performing his job that primarily benefited the employer.
Accordingly, the DOL determined the time spent receiving pages was not compensable as time worked but the time spent calling customers and scheduling appointments was.
Practical application. The DOL recognized that work patterns have changed. [R]emote work and “split shifts” between homes and separate work locations have become increasingly prevalent in recent years.” As such, questions arise related to today’s work practices that would not have just a decade ago.
