Employment Law Update: DOL Opinion Letter Gives Green Light to Same-Day Hybrid Work for Non-Exempt Employees
Date: August 6, 2026
By:
David M. Stevens
The opinion letter addressed a scenario in which an employee – in order to avoid commuting during rush hour traffic – performs part of their shift at home before traveling to the employer’s facility later in the day, and working the rest of his or her shift onsite. The opinion also included a second scenario in which an employee reports to work in the morning and then travels home at mid-day before performing additional work at home. The DOL’s letter acknowledged potential uncertainty as to whether such travel in the midst of the workday would convert the employee’s commute into compensable time based upon language in a regulation that generally dictates that travel from one worksite to another during a workday must be treated as compensable.
The Department concluded that the home-to-work (or work-to-home) travel time in such a scenario “would not qualify as FLSA-covered ‘work,’ as the facts provided indicate that such travel time would be an ‘ordinary’ commute that is a normal incident of employment and thus primarily benefits the employee.” As such, the opinion letter provides some degree of reassurance for employers whose employees start or end their workday at home while being present at the employer’s facility for some portion of their workday.
The Department’s statement that such ‘mid-shift’ commuting time will generally not be compensable is subject to two important caveats. First, the time would become compensable in the event that the employee is not fully relieved from duty while traveling between their home and the employer’s worksite. Thus, an employee who takes a work-related call while driving or who edits documents while riding a bus would be considered to be working during the period of travel. Second, the employee’s commute would need to take at least twenty minutes in order to be non-compensable, since non-working periods shorter than that amount of time are considered to be compensable break time.
Employers considering such hybrid shift arrangements should take note that allowing non-exempt employees to perform work offsite still carries a degree of risk and requires employers to ensure that all working time is appropriately documented. Unlike exempt employees who are paid a salary that does not change based on the number of hours worked, non-exempt employees must be paid the applicable required wage amount for all work hours they complete.
When a non-exempt employee performs work at home, questions can arise after the fact as to whether the employee performed some amount of work outside of their scheduled hours. That risk is increased by the fact that employees working from home are typically utilizing communications equipment that lends itself to being used to send messages at any time of the day. It is therefore essential that the employer have adequate means in place to track and record all working time, regardless of whether it is performed at the employer’s facility or the employee’s home.
Employers with questions about wage-and-hour requirements are encouraged to reach out to Whiteford’s Employment Law team for guidance.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.