DOL Provides Guidance Related to Pre-Shift Work, Limits on the De Minimis Doctrine, and Timekeeping Rounding Practices

On May 28, 2026, the U.S. Department of Labor (DOL) Wage and Hour Division issued Opinion Letter FLSA2026-8, providing compliance guidance related to a hospital’s timekeeping and pay practices, including regarding the compensability of certain pre-shift activities, waiting time, application of the de minimis doctrine, and whether its rounding policy complies with the Fair Labor Standards Act (FLSA). 

The opinion letter involves an inquiry submitted by a non-exempt employee of a public hospital that employs approximately 18,000 non-exempt employees. The hospital permits workers to clock in up to seven minutes early and clock out seven minutes after their scheduled shifts (to account for limited timekeeping stations). The hospital’s timekeeping system rounds these times to worker’s scheduled shifts. However, while the timekeeping system would round early clock-outs in the same seven-minute increments, the hospital prohibits non-exempt, hourly workers from clocking out prior to the conclusion of their shift time (i.e., they cannot clock out prior to their shift end time). Non-exempt, hourly workers, including respiratory therapists, routinely perform pre-shift activities, such as reviewing patient handoff reports from colleagues, after clocking in and before their scheduled shifts begin. 

The FLSA’s Requirements 

The FLSA requires employers to pay non-exempt employees for all hours worked, including work the employer knows or has reason to know is being performed, and provide premium overtime compensation for hours worked over 40 in a workweek. Work that is not expressly assigned, requested, or required, but is nonetheless performed, is compensable, and employers must generally pay for all such work that they know about or have reason to know is being performed.

However, the FLSA (through the enactment of the Portal-to-Portal Act) does not require employers to pay for certain activities, including, for example, certain pre‑ and post‑shift activities like walking, riding, or traveling to/from the actual place employees perform their principal activities. Instead, the FLSA requires payment only for activities that are integral and indispensable to employees’ principal job duties. See Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 33 (2014). An activity is integral and indispensable if it is an intrinsic element of the employee’s principal work and cannot be dispensed with without impairing the performance of those duties.

The de minimis doctrine permits employers to disregard insubstantial or insignificant periods of off‑the‑clock work that are administratively difficult to record. In evaluating whether time is de minimis, courts consider the practical administrative difficulty of recording the time, the aggregate amount of compensable time involved, and the regularity with which the work occurs. 

Under the FLSA, rounding practices are permissible under specific conditions outlined in its regulations.[1] Employers may round employee time to the nearest fraction of an hour (such as five minutes, six minutes, or quarter-hour), provided that, over time, the practice does not result in employees’ being undercompensated for hours actually worked. In other words, an employer’s rounding practice must be neutral on its face and in practice, and it must not consistently favor the employer. 

Opinion

Pre-Shift Activities and Waiting Time

The DOL identified several pre-shift activities performed before the start of the workday and concluded that at least some of those activities were compensable where they were integral and indispensable to employees’ principal job duties. In particular, tasks such as reviewing patient status through handoff reports and identifying assigned patients were necessary for respiratory therapists to safely and effectively begin patient care, and therefore constituted compensable work. The DOL explained that these activities were intrinsic to the employees’ job duties and could not be dispensed with without impairing performance of those duties.

With respect to waiting time, the DOL reached a different conclusion. Time spent waiting in line to clock in or out was not compensable, where it occurred before the first principal activity or after the last principal activity of the workday. The DOL emphasized that such waiting is not integral and indispensable to the employee’s principal duties, even when it occurs on the employer’s premises or immediately precedes the start of the shift (or comes after the end of the shift).

The DOL considered other unspecified administrative activities performed before the start of the shift but declined to opine whether those activities were compensable under the facts presented. The DOL explained that whether an activity is “integral and indispensable” must be evaluated on a fact-specific basis, and it did not have enough facts to make any broad conclusion related to compensability. 

De Minimis Doctrine

Next, the DOL analyzed whether the hospital could rely on the de minimis doctrine to exclude regularly occurring pre-shift time of up to seven minutes per day. The DOL explained that where employees regularly perform compensable work prior to the start of their paid shifts on a daily basis, such time is unlikely to qualify as de minimis, as employers may not “arbitrarily fail to count” any portion of fixed or regular working time, even if small.

However, where pre‑shift work is irregular, the practical administrative difficulty in recording such time may support de minimis treatment. The DOL declined to determine whether the doctrine applied to the facts presented, noting that even with a timekeeping system that accurately captures actual clock‑in and clock‑out times, it was unclear whether the employer could practically determine when each employee’s first principal activity began, as opposed to time spent on personal or non-compensable activities (such as getting coffee or socializing). 

The DOL cautioned that employers should apply the de minimis doctrine narrowly, particularly in light of technological advances that enable increasingly precise time tracking, and it warned that employers should expect “exacting scrutiny” where employees regularly perform off‑the‑clock work.

Rounding Practices

Finally, the DOL analyzed whether the hospital’s timekeeping practice complied with the FLSA’s rounding regulation, 29 C.F.R. § 785.48. Under the limited facts presented, the DOL explained that the practice of only rounding early clock-ins to the scheduled shift time where the employees were performing compensable work—without, for example, permitting employees to similarly clock in up to seven minutes late for the beginning of their shift—is inconsistent with the rounding regulations because the practice is not facially neutral. Stated differently, the practice of rounding away compensable time from an employee without the ability for that employee to gain time as a result of rounding makes the practice impermissible. Moreover, even if facially neutral, this practice would not yield the requisite neutral impact when analyzed over time, as the employee would only ever lose time as a result of the rounding practice. Under different circumstances, if the practice allowed both the employee and employer to obtain a benefit of rounding, and over time the practice averaged out so the employee did not systematically “lose” time clocked in, then the practice would likely comply with the rounding regulation.

Conclusion

The opinion letter provides employers with broad compliance guidance over multiple compensability scenarios applicable to non-exempt employees. Employers should review this guidance and their policies and practices related to what constitutes “hours worked” and any time “on the clock” for which they do not pay based on either the de minimis doctrine or rounding regulation. Moreover, employers must remain aware of state-specific deviations, including the ever-growing number of states to reject the FLSA’s Portal-to-Portal Act (i.e., creating a different definition of “hours worked” than the FLSA) and de minimis doctrine. Companies with questions about the compensability of certain pre- and post-shift activities and whether their timekeeping practices comply with federal and state law should work with experienced counsel.