Compliance Round Up – Hybrid Commute Pay, an NLRB Noncompete Memo, a Colorado Wage Overhaul, and a Revived Harassment Claim

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Written By
Jennifer Kiesewetter
Published On: July 28, 2026

Jenny Kiesewetter is a practicing ERISA and employee benefits attorney who partners with HR teams on a wide range of workplace compliance matters — from benefit-plan obligations to day-to-day HR policies and regulatory requirements. Her guidance helps employers spot risks early, navigate regulatory change, and make informed decisions that support both employees and the organization.

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Federal agencies spent July redrawing the lines on pay and workplace rules, while the states and the courts kept adding obligations of their own. This issue covers four developments across wage-and-hour, restrictive covenants, and harassment, and each one lands on HR.

Federal News

Effective Date: Opinion letter FLSA2026-9 issued July 22, 2026.

What’s Changing

On July 22, 2026, the U.S. Department of Labor (DOL) Wage and Hour Division issued opinion letter FLSA2026-9, addressing whether a nonexempt employee who splits the day between home and the office must be paid for the commute in between. The Fair Labor Standards Act (FLSA) requires pay for hours worked, and the continuous-workday principle can sweep in travel between the day’s first and last work activities. The DOL rejected the idea that working from home first automatically makes any later home-to-office travel compensable, identifying three categories that stay unpaid wherever they fall in the day: bona fide meal periods, off-duty periods, and ordinary commuting.

The DOL applied that reasoning to three arrangements (shifting the drive to avoid rush hour, working extra project hours at home before a regular shift, and finishing at home after the last bus) and found the commute unpaid in each, because the employee sought the arrangement for personal convenience rather than the employer’s benefit. Travel between worksites, travel that is itself a job duty, and work performed during the trip all remain compensable. So does the obligation to record every hour actually worked, wherever the employee performs it.

A companion letter, FLSA2026-10, addressed a field service engineer and reached different results based on the activity at issue and the timing of the commute. Receiving pages was treated as incidental to the commute and unpaid, while calling clients and coordinating other engineers was treated as integral and indispensable work that began the compensable day; in the facts presented, the drive became compensable when the employer required substantial work before or during the trip.

What This Means for HR:

  • Review hybrid and remote timekeeping rules so an optional midday commute is not logged as paid time.
  • Keep recording all hours actually worked at home, even when the surrounding travel is unpaid. The letter is explicit that no-pay-for-travel does not mean no-record.
  • Distinguish ordinary commuting from travel the FLSA still pays for, including worksite-to-worksite trips and work performed en route.
  • Document that a split-day schedule reflects the employee’s request, since the analysis turns on whether the travel is principally for the employee’s benefit rather than the employer’s benefit.

Effective Date: Division of Advice memoranda released June 26, 2026.

What’s Changing

One of the restrictive-covenant memoranda, involving Biotricity, is dated May 5, 2026, though it was released on June 26, 2026. In Biotricity, Inc., dated May 5, 2026, the Division stated that General Counsel Crystal Carey does not view noncompete agreements as generally affecting employees’ Section 7 rights under the National Labor Relations Act (NLRA). A companion memorandum, BAYADA Home Health Care, found a post-employment non-solicitation clause in a separation agreement lawful because it did not interfere with protected activity during employment. The June memoranda are the clearest statement yet of a shift that began in February 2025, when the acting General Counsel rescinded former General Counsel Jennifer Abruzzo’s May 2023 memo taking the opposite position.

An advice memorandum is not binding law and does not decide enforceability, which still turns on state law. It signals that current leadership is unlikely to argue that an overbroad restrictive covenant, standing alone, violates Section 7. Federal exposure has not disappeared, though. The Federal Trade Commission (FTC) has said it will keep pursuing case-by-case actions against unjustified or overbroad noncompetes under the FTC Act, and it has followed through: a warning letter to Mortgage Connect in May 2026 and a finalized consent order against Rollins in June.

What This Means for HR:

  • Expect fewer NLRB charges targeting noncompetes and non-solicitation clauses while this General Counsel’s position stands.
  • Narrow restrictive covenants to what the business actually needs. State law governs enforceability, and six states now ban most employment noncompetes outright: California, Minnesota, Montana, North Dakota, Oklahoma, and Wyoming.
  • Watch Washington. House Bill 1155, signed March 23, 2026, voids every employment noncompete regardless of when it was signed, effective June 30, 2027, with a worker notice deadline of October 1, 2027. Agreements drafted this year will not survive it.
  • Monitor for a future shift, since an advice memo can be reversed by a new General Counsel.

Trending State News

Effective Date: The 2026 Colorado Overtime and Minimum Pay Standards (COMPS) Order Number 40 took effect February 1, 2026. The related owner-liability expansion took effect August 6, 2025.

What’s Changing

Colorado adopted the 2026 Colorado Overtime and Minimum Pay Standards (COMPS) Order Number 40, the most significant update to its wage-and-hour rules in years, and employers are still absorbing it this summer.

The order also conforms to a change many employers missed last year. HB 25-1001, effective August 6, 2025, expanded who counts as an “employer” under the Colorado Wage Act to reach any individual who owns or controls at least 25 percent of an employer’s ownership interests. A minority owner can escape that liability only by demonstrating full delegation of authority to control day-to-day operations, and the burden sits with the owner. Majority owners have no such off-ramp. The rule reaches natural persons, not entities holding an interest.

The order adds posting and recordkeeping duties. Employers must display the 2026 COMPS poster, include the poster or the order with any handbook, and collect a signed acknowledgment where the handbook requires one. Employers must now track vacation hours accrued, used, and available for the current benefit year, along with sick leave hours under the Colorado Healthy Families and Workplaces Act (HFWA) to the extent tracked separately, and provide those balances in writing on request, no more than once a month unless policy allows otherwise. Separately amended Wage Protection Rules also change how sick-leave pay is calculated for variable-pay workers. When the employee’s schedule is unknown at the time leave is needed, pay rests on a 30-day lookback of rates, shift differentials, tip credits, and commissions, excluding overtime, bonuses, and holiday pay.

What This Means for HR:

  • Display the 2026 COMPS poster where employees gather, include the poster or order with handbooks, and collect a signed acknowledgment where the handbook requires one.
  • Audit ownership records. Anyone holding at least 25 percent has been inside the definition of “employer” since August 2025, and a minority owner who wants out has to prove the delegation.
  • Update leave tracking to cover both vacation and sick balances, and apply the 30-day lookback for variable-pay workers whose schedules are not set when leave begins.

Around the Courts

Effective Date: Decided July 14, 2026 (Brenyah v. Columbia Hospital Corp. of Bay Area, U.S. Court of Appeals for the Fifth Circuit).

What’s Changing

In Brenyah v. Columbia Hospital Corp. of Bay Area, the Fifth Circuit revived a registered nurse’s hostile work environment claim under Title VII and Section 1981, even as it upheld dismissal of her race, national origin, and disability discrimination claims and her retaliation claims. The Title VII revival reaches only the facts contained in her first, timely charge filed with the Equal Employment Opportunity Commission (EEOC); the Section 1981 claim was revived without that limit. The plaintiff, who is Black and was born in Ghana, said coworkers mocked her accent and her food and made race-based remarks on nearly every shift, and that repeated reports to supervisors did not stop it.

The court held that a reasonable jury could find the harassment affected a term or condition of her employment, counting harassment directed at a Black colleague as part of the totality of the circumstances, while noting that such secondhand harassment is less objectionable than harassment aimed at the plaintiff. A reasonable jury could also find the employer’s response inadequate. The hospital, doing business as Corpus Christi Medical Center, said it investigated, coached staff, and offered a transfer. But a manager testified that an investigation file existed and that he “most definitely took interview notes,” and neither was produced in discovery. A Black employee on the unit was never interviewed. Statements supporting her account were left out of the investigation summary, and managers allegedly told her the cliques were not going anywhere. The Fifth Circuit covers Louisiana, Mississippi, and Texas.

What This Means for HR:

  • Treat harassment directed at a worker’s colleagues as part of the totality, though courts weigh it less heavily than harassment aimed at the employee.
  • Preserve investigation files, interview notes, and findings. Testifying that notes existed and then failing to produce them is what handed this plaintiff a trial.
  • Interview the obvious witnesses, including the coworkers whose experiences the complaint describes, and keep their statements in the summary rather than out of it.
  • Follow up after an investigation to confirm the conduct stopped, and document that the problem was resolved.

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