Hourly Staff Can Split Their Day Between Home and Office — And the Commute Stays Unpaid

Many small employers have told hourly workers no to a simple request: "Can I work from home in the morning, drive in at 10, and head back home at 3?" The fear was that the drive in the middle of the day would count as paid time. A U.S. Department of Labor opinion letter says that fear is often misplaced.

In Opinion Letter FLSA2026-9, dated July 22, 2026 and now being widely discussed by employment lawyers, the Wage and Hour Division concluded that a voluntary mid-day commute between home and office is generally ordinary commuting, not hours worked. That holds even when the employee does paid work at home before or after the drive.

What the Labor Department decided

The question was whether mid-day travel between an employee's home and office is compensable under the Fair Labor Standards Act (FLSA) when the employee works at both places and the trip is a voluntary alternative to commuting before or after the workday. The Division said such travel can be excluded. The employer need not count it as work or pay for it.

The letter analyzed three situations:

1. Avoiding rush hour: a 9-to-5 employee commutes mid-day, say 10:00 to 10:30 a.m. and 3:00 to 3:30 p.m., and works from home the rest of the time.
2. Volunteering for extra work: an employee takes on a special project and works at home in the early morning before commuting, instead of arriving early or staying late.
3. Catching the bus: an employee takes the city bus, cannot finish the work before the last bus, and finishes assigned work, including overtime, after getting home.

The Division reached the same answer in all three.

Why this matters for small employers

Employers generally knew two rules. A normal commute at the start or end of the day is not paid. But travel between job sites during the workday is paid. The uncertainty was whether doing real work at home turned the home into a job site, which would make the mid-day drive paid travel. Many businesses answered that risk by banning split schedules for non-exempt employees altogether.

According to attorneys at Baker Donelson who analyzed the letter, the Division treats ordinary commuting as a third category of non-work time during the day, alongside bona fide meal breaks and off-duty time. The home does not become a job site just because compensable work happens there.

For a business trying to hire and keep hourly staff, that opens a flexible option that costs nothing in wages: parents who need to do school drop-offs, or workers avoiding a brutal commute window, can shape their day.

The conditions that keep the commute unpaid

The opinion is not a blank check. It depends on the facts in the request, and the Division listed assumptions you need to meet.

• The arrangement is voluntary and mainly benefits the employee. If the employer requires the split, or tightly controls the timing or length of the trip, the travel may be compensable. The letter does not cover those situations.
• The employee is fully relieved of work during the trip. Any work done while traveling, such as taking calls or answering messages, is paid time and undermines the exclusion.
• Your timekeeping captures all work, wherever it happens. You must still record every hour worked each day and week, whether at the office or at home. The Division noted that, depending on your practices, you may need to record the timing or length of excluded commutes.

The Division also said no minimum commute length applies, and the trip does not have to be tied to a personal errand like a doctor's visit to count as ordinary.

What still counts as paid time

The letter does not change these rules, which still require pay:

• Travel from one job site to another during the workday.
• Work done while traveling.
• Travel between two employer work locations.
• Emergency call-outs and certain special one-day assignments in another city.

An employee who drives to a client site at your direction, for example, is still on the clock.

A practical setup for your business

1. Get requests in writing. Have the employee ask for the split schedule and explain the reason. That documents that the arrangement is voluntary.
2. Set clear no-work-while-commuting rules. Tell staff that checking email or taking work calls in the car must be logged and paid.
3. Use a time system that works anywhere. Make sure employees can clock in and out from home and that overtime is calculated across all locations.
4. Watch overtime. Work at home before the office day still counts toward 40 hours.
5. Check state rules. The letter addresses only federal law. Some states have stricter pay rules for travel and split shifts.

Limits on relying on the letter

Opinion letters are official interpretations, and the Division says good-faith reliance on one may protect you under the Portal-to-Portal Act even if the position is later changed. But the letter does not apply to parties currently under a Wage and Hour investigation or to litigation that began before the request, and courts keep their own authority to interpret the FLSA. Treat it as strong guidance, not a guarantee.

If you are unsure whether a worker is properly treated as hourly, or whether someone should be an employee at all, read our guide on independent contractors versus employees. Misclassification is a far larger risk than a mid-day drive.

The bottom line

Hourly employees who want a split schedule no longer need to be a legal headache. If they ask for it, you do not make them do it, and they are not working while they drive, the commute can stay unpaid. The cost to you is paperwork: written requests, clear rules, and accurate time records. For a small business competing for workers against larger employers, that is a cheap perk to offer.

Before changing your policy, review the full text of Opinion Letter FLSA2026-9 on the Department of Labor website and check with an employment attorney or your state labor agency.

Photo by Samantha Gades on Unsplash