When Pre-Shift Work and Travel Time Must Be Paid in New York

Two employees are awake at 7:00 a.m. One spends the first hour at the kitchen table calling customers to set the day’s appointments, then drives to the first one. The other has coffee, reads the news, and drives to the office. Both are in the car by 8:00, and on paper both shifts start at the same time. Under federal wage law, those two mornings can produce different paychecks.

The key question is which activities count as work and which are ordinary preparation or commuting. The answer turns on what the employee is doing, who is directing it, and when it happens. These rules apply to covered nonexempt employees, meaning workers entitled to overtime, a group that can include salaried employees.

When Work Starts Before the Scheduled Shift

Compensable work begins when the work does, whatever the schedule says. Federal law requires payment for work an employer “suffers or permits,” and the Department of Labor reads that broadly: if the employer knows or has reason to believe the work is being performed, the time counts as hours worked even when nobody formally assigned it. Calling customers to schedule work and handling substantive work email before clocking in can both qualify.

Ordinary personal preparation, such as eating breakfast or getting dressed for the day, sits on the other side of the line and generally does not count as work. Required preparation may count as paid time when it is integral and indispensable to the employee’s principal job duties, meaning it is an intrinsic part of that work that the employee cannot dispense with. Depending on the work, that can include equipment preparation or changing into required protective clothing.

A July 2026 Department of Labor opinion letter, FLSA2026-10, addressed a field engineer who commuted in a company vehicle. The Department treated the minimal time he spent receiving dispatch pages as incidental to that commute, and treated his calls to clients to schedule appointments as compensable work.

When Travel Has to Be Paid

The Ordinary Commute

Ordinary travel between home and work is generally unpaid under federal law. A company vehicle leaves that rule in place: under the Employee Commuting Flexibility Act, commuting in an employer-provided vehicle within the normal commuting area, under an agreement between employer and employee, stays outside hours worked.

Travel Between Jobs

Once the workday begins, travel from one job site to the next is part of the day’s work, and the employer has to pay for it. A technician who finishes a service call in Hicksville and drives to the next one in Huntington is on the clock for that drive.

Work Performed During Travel

Work performed during an otherwise unpaid commute is paid time in its own right. Federal regulations say any work an employee is required to perform while traveling counts as hours worked. Whether that work turns the entire trip into paid time depends on how much work there is and who controls the trip. An occasional work task during a commute may require payment for the task without making the entire trip compensable. Sustained, required work can change the character of the drive.

Does Working at Home First Make the Trip Paid Time?

For hybrid employees, working at home before traveling to the office does not automatically make the trip paid time. The answer depends on the circumstances of the arrangement. In opinion letter FLSA2026-9, the Department of Labor addressed employees who split the day between home and the office, with midday travel offered as a voluntary option for schedule flexibility. It concluded that the travel was an ordinary, unpaid commute even though it fell in the middle of the workday, because it primarily benefited the employee. The Second Circuit, whose decisions govern federal courts in New York, reached a similar result in Kuebel v. Black & Decker, holding that administrative tasks an employee finished at home on his own schedule did not make his commute compensable.

The result shifts when the employer controls the timing. In FLSA2026-10, the field engineer had to spend most of an hour on client calls immediately before leaving, or while driving, and then travel at the time and in the manner his employer directed. The Department of Labor found the drive compensable from the point those calls started his workday, because he had little of the freedom an ordinary commute carries. That follows the continuous workday doctrine: once an employee performs the first principal activity of the day, the time that follows is generally paid until the workday ends, apart from recognized exceptions such as bona fide meal breaks, off-duty time, and an ordinary commute. Employer control over the arrangement, and what the employee has to do on either side of the trip, helps determine the outcome.

What the Opinion Letters Explain

The Department of Labor’s Wage and Hour Division issued both letters on July 22, 2026. They are official interpretations of federal law applied to the specific facts each requester described, and the Department states that additional facts could change the conclusion. FLSA2026-10 also declines to say how much less work during a drive would leave it an ordinary commute. An employer may establish a defense under the federal Portal-to-Portal Act by proving that its conduct conformed to, and actually relied in good faith on, an applicable written agency interpretation such as these letters. That protection comes from federal law, so claims under New York law still need their own analysis.

New York Law Is Part of the Analysis

New York employers also answer to the state’s wage orders, which differ from one industry to another. Separate orders cover building service and hospitality, and a general order covers most other industries. The general order counts travel that is part of the employee’s duties as working time and computes overtime using the federal method, subject to some state-specific provisions. Employment agreements, collective bargaining agreements, and written company policies can also obligate an employer to pay for time the federal rules leave unpaid.

Two recent federal decisions show how that framework applies to time spent inside the workplace before and after a shift. In March 2026, a federal court in the Eastern District of New York dismissed claims by Amazon warehouse workers seeking pay for mandatory badge swipes and security screenings in Bettis v. Amazon.com Services, holding that New York law follows the federal rule excluding preliminary and postliminary activities. In September 2026, the Northern District of New York reached the same result in Kratzert v. Target, where warehouse workers sought pay for walking from security checkpoints to timeclocks near their departments, holding that the general wage order incorporates the Portal-to-Portal Act’s limits on compensable time. The Amazon workers have appealed to the Second Circuit, arguing that New York never adopted those federal limits, so the question remains open until the appeals court rules. For now, federal courts in New York have treated ordinary walking and screening time before a shift as unpaid, while the job duties discussed above still count from the moment they begin.

Compensable pre-shift work and travel feed directly into overtime. Covered nonexempt employees generally earn one and a half times their regular rate of pay for hours worked over 40 in a workweek under both federal and New York law, so an unrecorded hour each morning can turn a 40-hour week into a 45-hour week.

New York also gives employees considerably more time to bring a claim. A wage claim under the New York Labor Law can reach back six years, while federal claims generally reach back two years, or three for willful violations. An employee who prevails under the state law recovers the unpaid wages along with reasonable attorney’s fees and prejudgment interest, plus an additional amount equal to the unpaid wages as liquidated damages unless the employer proves a good-faith basis for believing its pay practice complied with the law. Unrecorded morning calls and drive time can therefore accumulate over years rather than months before anyone raises them.

What Employees and Employers Should Review

Employees should keep notes of tasks performed outside scheduled hours, travel between job sites, and any instructions about when to make calls or leave home. New York requires each wage statement for a nonexempt employee to list the regular and overtime hours worked, so those notes can be checked directly against what the employer recorded. Employees can ask a supervisor or payroll how to record duties performed outside the shift, and New York law prohibits an employer from retaliating against an employee who reasonably and in good faith complains about a possible wage violation.

Employers should look at what employees actually do before clocking in, especially calls, scheduling, and email that supervisors expect. Clear written instructions for recording remote work and travel prevent guesswork. New York requires employers to keep accurate payroll records showing the hours each employee worked each week for at least six years, matching the state’s six-year lookback. Those records carry real weight, since courts allow employees to prove their hours by reasonable inference when an employer’s records fall short. Federal guidance recognizes that, for certain at-home duties whose duration varies and is difficult to measure, a written mutual agreement reflecting the relevant facts may provide a reasonable way to account for the time. That is a narrow option rather than a substitute for timekeeping, and New York’s requirement of contemporaneous, accurate records of hours worked makes tracking actual time the safer practice for New York employers.

Resolving Pay Questions Early

The employee making client calls at 7:00 a.m. may be on the clock before leaving the house, and possibly for the whole drive. The one having coffee is commuting. The task, the travel arrangement, and the applicable law decide the answer, and reviewing them early keeps a pay question from becoming a dispute.

Through its employment law practice, The Siegel Law Firm advises employees with unpaid-work concerns and employers reviewing their pay practices throughout New York City, Long Island, and New York State. Call 844-522-4-LAW or email info@thesiegelawfirm.com to discuss your situation.