Flexible work arrangements are here to stay, and many California employers are looking for ways to give employees more control over their schedules. One common request? “Can I work from home for part of the day so I can avoid rush-hour traffic?”

Seems simple enough. But for employers with non-exempt employees, that request raises an important wage and hour question: If an employee starts the workday at home and then drives to the office, is that midday commute now paid time?

According to a recent U.S. Department of Labor (DOL) opinion letter, the answer is “not necessarily.”

The good news? Under the federal Fair Labor Standards Act (FLSA), a midday commute may remain unpaid. The catch? The employee—not the employer—has to be driving the arrangement.

For California employers, however, there’s an even bigger catch: the DOL interprets federal law, not California law. California wage and hour rules are often more protective of employees, so this opinion letter is helpful guidance—but it is not the last word.

Why This Matters in California

Under the FLSA, ordinary home-to-work commuting generally is not compensable.

The concern arises because of the “continuous workday” doctrine. Once an employee begins performing principal work activities, time between the first and last principal activity of the day may become compensable.

That’s why many employers have hesitated to approve split-day schedules for non-exempt employees. If someone works from home for two hours and then drives to the office, has the workday already started?

The DOL says that, under the facts presented, the answer is “no.”

California employers, however, should remember that California courts and the Labor Commissioner often take a broader view of what constitutes “hours worked,” particularly where the employer exercises control over an employee’s time.

The Facts Made All the Difference

The opinion letter considered three different situations.

One employee wanted to work from home in the morning, drive to the office after traffic eased, and leave before the evening commute.

Another wanted to complete additional project work from home before the regular workday instead of coming into the office early.

A third employee who relied on public transportation wanted to finish work from home after leaving the office so he wouldn’t miss the last bus.

Different facts. Same conclusion.

In every situation:

• The employee requested the arrangement.
• The employee decided when to commute.
• The employee performed no work during the drive.
• The employer did not direct or control the timing of the travel.

Those facts were critical to the DOL’s conclusion that the travel remained an ordinary commute.

The Real Lesson Isn’t About the Commute

The biggest takeaway isn’t about driving. It’s about who controls the schedule.

The DOL repeatedly emphasized that these arrangements worked because the employees initiated them. The employer wasn’t directing employees to split the workday, wasn’t deciding when they should travel, and wasn’t assigning work during the commute.

In other words, the commute stayed an ordinary commute because the employee chose it.

For California employers, that distinction is especially important. California wage and hour law frequently turns on employer control. The more the employer dictates when, where, or how work is performed, the greater the risk that travel time could be viewed as compensable.

If a supervisor says, “I’d like you to work from home this morning and come into the office around 11,” you’ve moved away from an employee-driven arrangement and closer to employer-directed travel. That creates a different—and potentially more risky—analysis under California law.

“Off Duty” Needs to Mean Off Duty

The opinion letter also depended on employees being completely relieved of duty during the commute.

That means:

• No conference calls.
• No responding to emails.
• No Teams or Slack messages.
• No expectation that the employee is available if something comes up.

In California, employers should be particularly careful about this point. Even seemingly minor work performed during a commute can create compensable time and may trigger other wage and hour obligations, including overtime, meal period, or rest break issues depending on the circumstances.

Policies are important, but manager behavior matters even more. A handbook that says employees are off duty during the commute won’t help if supervisors routinely text employees while they’re driving.

Practical Takeaways for California Employers

This opinion letter offers helpful insight, but California employers should treat it as guidance, not a green light.

If you’re considering allowing split-day schedules for non-exempt employees:

• Require employees to request the arrangement voluntarily.
• Document that the employee, not management, initiated the schedule.
• Make clear that employees are completely relieved of duty during the commute.
• Train supervisors not to call, text, email, or otherwise assign work during travel.
• Evaluate each arrangement under both federal and California law before implementing it as a standard practice.
• Review your telework and flexible scheduling policies to ensure they don’t unintentionally create employer-directed travel.

Bottom Line

The DOL’s opinion letter is encouraging for employers looking to offer more flexibility, but California employers shouldn’t assume the analysis ends there.

The federal takeaway is straightforward: an employee-requested midday commute may remain unpaid if the employee controls the arrangement and is genuinely off duty during the drive.

In California, however, the question often is whether the employer exercised control over the employee’s time. That means the same facts that persuaded the DOL may not always resolve the issue under California law.

Before rolling out a split-day telework policy for non-exempt employees, make sure the arrangement is carefully structured and evaluated under California’s wage and hour standards, not just the FLSA. As is so often the case in California employment law, the details make all the difference.