DOL Issues Opinion Letter Regarding Compensability of Pre-Shift Activities Covered by a Collective Bargaining Agreement

On January 5, 2026, the U.S. Department of Labor (DOL) issued an opinion letter addressing whether an employer and union could enter into a collective bargaining agreement (CBA) that mandates a 15-minute “roll call” before each shift but excludes that time when calculating overtime premiums under the Fair Labor Standards Act (FLSA). The opinion letter contains important reminders about the compensability of certain pre- and post-shift work activities as well as partial overtime exemptions available to unionized employers.

The opinion letter involved employees working under a CBA with fixed eight-hour shifts on a “four days on and two days off” schedule, working 32 hours over each six-day period. The employer and union were considering adding a mandatory 15-minute roll call prior to each shift to bring employees closer to 2,080 hours per year, a number that is typical of a full-time work year (40 hours per week x 52 weeks). The DOL was asked three questions:

1. Whether the mandatory 15-minute roll call period was “hours worked” under the FLSA;
2. Whether the roll call period can be used to supplement pay periods that would otherwise fall below 80 hours on an ongoing basis; and
3. Whether the roll call period can be excluded from the overtime calculation given that its sole purpose is to bring employees closer to 2,080 annual hours. 

In response to the first question, the DOL concluded that the mandatory roll call time must be counted as “hours worked” under the FLSA. While certain activities before or after a shift might be excluded as “preliminary” or “postliminary,” those exclusions do not apply when the time has been made compensable by contract, custom or practice. The proposed CBA made the roll call time compensable by contract; therefore, the time must be classified as “hours worked” under the FLSA. 

In response to the second question, the DOL concluded that because an employer must compensate all employees for all hours worked and because the 15-minute roll call time constitutes compensable hours worked, it must be counted as part of the workweek of each employee who attends the roll call, regardless of the number of hours each employee works that week. 

As to the third question, the DOL explained that the employer may be able to avoid paying overtime premiums for this additional time if the CBA is structured to qualify for one of two partial overtime exemptions available to unionized employers. 

Under section 7(b)(1) of the FLSA, employers can claim a partial overtime exemption if: (a) the employee is employed pursuant to a CBA between the employer and a union certified as “bona fide” by the NLRB; (b) the employer pays the employee overtime compensation for all hours worked over 12 in a day or over 56 in a week; and (c) the CBA states that no employee will work more than 1,040 hours in any consecutive 26-week period. 29 U.S.C. § 207(b)(1). The DOL calculated that adding 15 minutes per shift to the schedule at issue would not result in an employee working more than the maximum threshold of 1,040 hours over a 26-week period. It would not cause an employee to work more than 12 hours in a day or 56 hours in a week. Therefore, the DOL concluded that if the CBA includes the required language of section 7(b)(1) and the employer adheres to the statutory requirements, the FLSA would not require the employer to pay overtime compensation for the additional 15-minute roll call periods.

Under section 7(b)(2), a partial overtime exemption applies when the CBA: (a) specifies the rate at which the employee is paid for all hours worked or guaranteed; (b) guarantees the employee, during a specified consecutive 52-week period, at least 1,840 hours of employment (or not less than 46 weeks at the normal number of hours worked per week if not less than 30), and not more than 2,080 hours, at the specified rate; (c) provides the employee shall not work more than 2,240 hours during the specified 52-week period; and (d) requires the employer to pay the employee overtime compensation for all hours worked over the guaranteed number of hours that are also over 40 in a given workweek and for all hours worked over 2,080 in the specified 52-week period. 29 U.S.C. § 207(b)(2). 

As in section 7(b)(1), this exemption also requires that the employee be employed pursuant to a CBA between the employer and a “bona fide” union and that the employer pay the employee overtime compensation for all hours worked over 12 in a day or over 56 in a week. The DOL calculated that the addition of 15 minutes of roll call time per shift based on the schedule at issue would not cause the employees to work more than the maximum threshold of 2,240 hours in the specified 52-week period. Therefore, the DOL concluded that the CBA provision at issue could also be structured to comply with the requirements of section 7(b)(2) such that the 15-minute roll call periods do not automatically trigger the requirement to pay overtime when an employee’s weekly hours exceed 40, and should result in minimal, if any, overtime liability on its own.

These partial exemptions come with an important caveat: If an employee works more than the maximum hours specified in the exemption, the employer must recalculate that employee’s earnings for the entire period without the exemption and pay all overtime premiums due.

The opinion letter provides important guidance for employers and unions negotiating the compensability of pre- and post-shift activities. While employers cannot simply contract away their overtime obligations under the FLSA, it is possible to obtain a partial exemption from the traditional overtime requirement through a carefully structured collective bargaining agreement. Employers considering similar arrangements should work with experienced counsel.