The U.S. Department of Labor (DOL) has issued Opinion Letter FLSA2026-10, providing guidance on when employers must pay non-exempt employees for work performed before the start of a scheduled shift and whether that work can turn what would otherwise be an ordinary non-working commute into compensable time. The guidance is particularly important for employers with field technicians, service employees, maintenance personnel, and other workers who begin and end their day away from a central office location.
What Was at Issue?
The Opinion Letter responded to an employer inquiry about a field service engineer responsible for installing and servicing MRI equipment at hospitals and imaging centers. Unlike an office employee who reports to a company office location, the engineer was responsible to provide services at customer sites and drove directly from home to customer locations each day using an employer-provided vehicle.
Before reporting to the first customer site on a given day, the employee received service requests through the employer’s internal paging system. Between 7:00 a.m. and 8:00 a.m., the employee typically received three to five service requests, accepted the requests electronically, called customers to schedule appointments, and sometimes coordinated with other engineers if assistance was needed or the employee could not handle a particular call. According to the facts presented to the DOL, the scheduling calls often took five to ten minutes each and could consume much of the hour before the employee’s first appointment.
The employer presented two different scenarios for Department guidance:
- In the first scenario, the employee stayed home between 7:00 a.m. and 8:00 a.m., handled customer calls and scheduling activities, and then left for the first customer location at 8:00 a.m. The employer did not pay the employee for the time spent making calls before leaving home.
- In the second scenario, the employee had a long drive to the first customer appointment and left home before 7:00 a.m. The employee performed the same scheduling calls during the commute. The employer treated the first hour of travel as ordinary commuting time and did not compensate it.
The DOL was asked whether the employee had to be paid for receiving the service requests, making the customer calls, coordinating with other engineers, and traveling to the first customer location.
Legal Background
Before analyzing the employee’s specific guidance requests, the DOL walked through several key wage-and-hour principles related to whether time is compensable as to a non-exempt employee under the FLSA. First, the DOL emphasized that employers must pay non-exempt employees for all hours worked, including work performed away from a designated work site. The FLSA broadly defines “employ” as allowing or permitting work to occur, meaning employers are responsible for paying for work they know about or reasonably should know about, even if the work was not specifically assigned. The DOL also reiterated that the central question is whether the activity is performed primarily for the employer’s benefit. If it is, the time is typically compensable.
The DOL next discussed the “continuous workday” doctrine. Under this doctrine, once a non-exempt employee performs the first principal activity of the day, the compensable workday generally begins and continues until the employee completes the last principal activity. This rule prevents employers from carving a workday into compensable and non-compensable pieces based solely on whether an employee is actively productive at every moment. However, the DOL noted that some activities remain non-compensable even during the workday, including bona fide meal periods and, importantly, ordinary commuting time to the employee’s work site and from the work site when the day is done.
The opinion also relied heavily on the federal Portal-to-Portal Act and the federal Employee Commuting Flexibility Act. Those laws generally provide that employers do not have to pay non-exempt employees for ordinary home-to-work and work-to-home travel or for activities that are merely preliminary, postliminary, or incidental to commuting. Once an employee begins performing a principal activity that is “integral and indispensable” to the job, however, the workday starts and the analysis changes. The key issue then becomes whether the employee is simply receiving assignments, which may be incidental to commuting, or actually performing core job duties. If the employee is performing principal work activities while not commuting or during a commute, the travel will become compensable even though ordinary commuting time ordinarily is not if the work activities are not merely preliminary, postlimininary or incidental to commuting.
DOL Guidance on Receiving Service Requests
The DOL concluded that simply receiving the service requests was generally not compensable work time for the non-exempt employee. The employee spent only a few seconds accepting each page, and the DOL viewed that activity as incidental to commuting in an employer-provided vehicle. In other words, merely receiving assignments was not enough to start the workday.
This portion of the opinion is favorable to employers because many field employees receive assignments, schedules, route information, or similar communications before arriving at their first jobsite. The DOL indicated that the passive receipt of that information, by itself, is generally not compensable work.
DOL Guidance on Customer Calls
The DOL reached the opposite conclusion regarding the non-exempt employee’s calls with customers and other engineers.
According to the DOL, scheduling customer appointments was a necessary part of the employee’s job. The calls were required by the employer, directly benefited the employer, and were essential to servicing the MRI equipment. As a result, the DOL concluded that the calls were “integral and indispensable” to the employee’s principal job duties and constituted compensable work.
The same was true of calls made to coordinate work with other field service engineers. Because these activities were necessary to ensure customer service requests were fulfilled, they were compensable working time.
The DOL’s distinction is important. Simply receiving an assignment may not be compensable. Actively scheduling customers, coordinating services, solving problems, or otherwise advancing the employer’s business likely is.
DOL Guidance on Ordinary Commuting Versus Compensable Travel Time
The most significant part of the DOL’s Opinion involves its guidance on travel time. In the first scenario presented by the employer, the DOL assumed the employee spent most of the hour before leaving home making customer calls and coordinating schedules. Because those calls were compensable work activities, the DOL concluded that the employee had effectively started the workday before beginning their drive. Under those circumstances, the drive to the first customer location was no longer an ordinary commute and became compensable.
The DOL emphasized that the employee was spending a substantial amount of time performing work immediately before the drive and then reporting directly to a customer location. The DOL looked at the totality of the circumstances and determined that, because the employee had very little freedom to use that time for personal purposes, this made the situation fundamentally different from a normal commute.
The DOL reached a similar conclusion as to the second employer scenario. When the employee performed scheduling calls during the first morning drive itself, the workday began once those calls started. As a result, the travel time occurring after the employee began making calls was compensable. The DOL reasoned that an employee actively performing work throughout the commute no longer enjoys the flexibility associated with an ordinary home-to-work commute.
Why Does This Matter?
Many employers have field employees who respond to emails, answer customer calls, review service orders, confirm appointments, or coordinate work assignments before their scheduled start time. This Opinion demonstrates that relatively routine activities can trigger compensable work time if they are sufficiently connected to the employee’s principal job duties.
The Opinion also highlights the importance of evaluating what employees are actually doing before arriving at their first worksite of the day. Employers often assume that travel from home to the first customer location is non-compensable commuting time. As this Opinion illustrates, that assumption may not be correct if a non-exempt employee is performing substantial work immediately before or during the commute.
What Should Employers Do Now?
To promote compliance with federal wage and hour law, employers should:
- Review the pre-shift activities performed by non-exempt field employees and remote workers.
- Determine whether employees are making customer calls, scheduling appointments, coordinating work, or performing other substantive duties before their recorded start time, in which case, this time is likely compensable.
- Evaluate whether travel time that might otherwise be considered ordinary commuting should be treated as compensable because principal work activities occur immediately before or during the commute.
- Ensure timekeeping systems accurately capture work performed away from a company facility.
- Consult counsel regarding travel-time policies and off-the-clock work issues affecting field-based employees.
If you have any questions about the issues regarding wage and hour issues, travel time issues, or any other issue relating to employment law, please contact your Lathrop GPM attorney.