Clarification from the Department of Labor for the Portal to Portal Act, Remote Employees, and Mid-Day Work Related Travel

You may have seen some headlines recently to the effect of “Employees No Longer Compensated for Midday Travel.” Well, we hate to be the bearers of bad news – which is ironic, as that’s a full half of our job – but this headline comes with an asterisk that ensures that this new Department of Labor (“DOL”) policy won’t actually apply to 99% of employers. So, we’re here to get out ahead of this, before you waste any time reviewing or updating your employee travel policies based on incomplete information.

But first, some context: employee travel is governed under the Portal-to-Portal Act, which provides an elaborate flowchart as to when employee travel is considered compensable time (i.e. “on-the-clock”), or non-compensable time (i.e. “off-the-clock”). It’s not nearly as complicated as it looks; at the risk of oversimplification, the general rule is that any travel occurring after the employee has reported for duty is compensable, and any travel time occurring after the employee is completely relieved of duty for the day is non-compensable. 

It’s law, so obviously there are a fair share of “ifs,” “excepts,” and “unlesses,” but this general rule will steer you right a solid 90% of the time. And for the other 10%, well, that’s why our office number is just down below 😉

One such exception – articulated in DOL Opinion Letter FLSA2026-10 – is a situation where an employee actually begins performing their workplace duties from home, say by calling clients, or even by responding to employer emails, thanks to the “continuous workday” doctrine. This doctrine establishes that “once the workday starts, all activity is ordinarily compensable until the workday ends,” Aguilar v. Management & Training Corp., 948 F.3d 1270, 1279 (10th Cir. 2010). 

Per the DOL, an employee’s workday starts upon their performing their first workplace duty, whether such performance takes place in an office, in the employee’s own home, or even in a work van. See Johnson v. RGIS Inventory Specialists, 554 F. Supp. 2d 693, 708–09 (E.D. Tex. 2007) (performance of principal activities in a company van en route to the job site begins the continuous workday). Obviously, this asterisk comes with its own set of cascading asterisks, but this is a newsletter, not a scholarly article, so we’ll just have to leave it there for now.

Now, onto the headlines! The DOL recently issued DOL Opinion Letter FLSA2026-9, in response to an employer-inquiry regarding midday employee travel. Specifically, the employer wanted employees who typically worked from home to be able to occasionally report for in-person meetings midway through the day, after such employees had already clocked in and begun their workplace duties from their home-offices. This raised a question for the employer, namely: “in these circumstances, would we have to pay for the employee’s commute?”

Per the DOL, the short answer is “No.” 

But of course, nothing in law is ever that easy. The long answer is that, insofar as the DOL is concerned, any employee-travel time to or from the employee’s home is non-compensable time, even where such travel time occurs in the middle of the employee’s shift, provided that the reason for such travel “primarily benefits the employee.” 

So, nothing whatsoever has changed for employees traveling between worksites, or to-and-from any location other than their own primary residence. And the second asterisk – “primarily benefits the employee” – precludes particularly devious employers from demanding that traveling employees always return home between stops in order to render all travel time non-compensable. Not that any of our readers would be so unscrupulous, but if we thought of it within 90 seconds of reading the DOL’s opinion letter, doubtless somebody will try it eventually, so we figured we’d go ahead and get ahead of that one, if only for the sake of argument. 

In summation, the DOL’s new opinion letter renders midday employee travel occasioned primarily for the employee’s own benefit to-or-from the employee’s home non-compensable. At least, in theory, as let’s not forget that Chevron deference is dead and buried, meaning that courts are empowered to roll their eyes and tell the DOL to pound sand, at each individual court’s discretion. It’s almost as if administrative agencies have no power – or indeed, no reason to exist at all – post-Chevron, and the DOL is issuing opinion letters in a “We are here, we are here, we are here” Horton Hears a Who homage.  

All that said, if you have employees traveling as a part of their workplace duties, and you’ve never heard terms like “Portal-to-Portal” or “compensable travel time,” now is as good a time as any to double-check your policies and ensure that you’re not inadvertently skimming your employees’ hard-earned hours by failing to properly account for midday travel on your payroll. 

If you need a hand with that, like Horton the Elephant, we are here to help!