Bottom line: Whether a pre-shift activity is compensable under the FLSA is a fact-specific inquiry.
On May 28, 2026, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Opinion Letter FLSA2026-8. The opinion letter provides significant guidance on several recurring wage-and-hour compliance issues under the Fair Labor Standards Act (FLSA). Specifically, it addresses four core questions: (1) when pre-shift work activities constitute compensable “hours worked”; (2) whether time spent waiting at timekeeping stations is compensable; (3) the limits of the de minimis doctrine for recurring pre-shift work; and (4) the requirements for a lawful rounding practice under 29 C.F.R. § 785.48(b).
Although the letter was issued in response to a hospital employee’s inquiry, the principles it articulates can apply broadly to employers across many industries, including healthcare, manufacturing, retail, call centers, logistics and others.
Background
A nonexempt employee of a public hospital employing approximately 18,000 nonexempt workers requested this opinion letter. According to the employee, hospital employees are given flexibility to clock in up to seven minutes before their scheduled start times to avoid tardiness. When employees clock in early, the hospital’s timekeeping system automatically rounds the clock-in time forward to the scheduled shift start (e.g., a 6:53 a.m. clock in is rounded to 7:00 a.m.). Similarly, when employees clock out after the end of their shift, the system rounds back to the scheduled end time. The employee further represented that nonexempt employees routinely engage in pre-shift work activities immediately after clocking in, even when they clock in early. These activities include locating work assignments, completing accountability documentation, assigning employees to work locations via communication devices and receiving handoff reports from colleagues. The hospital does not compensate employees for this pre-shift work.
Key Takeaways from the Opinion Letter
Compensability of Pre-Shift Activities: The “Integral and Indispensable” Standard
Under the FLSA’s Portal-to-Portal Act, employers are not required to compensate employees for activities that are “preliminary” or “postliminary” to the employee’s principal activities. 29 U.S.C. § 254(a)(2). However, activities that are “integral and indispensable” to an employee’s principal job duties are compensable hours worked, even if they occur before the employee’s scheduled shift begins. 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 activities “with which the employee cannot dispense if he is to perform his principal activities.”
The opinion letter illustrates how this standard applies in practice. The WHD found that respiratory therapists at a public hospital who received handoff reports about patient status and located their work assignments before their paid shifts were performing compensable work because they could not safely begin patient care without first understanding each patient’s condition. By contrast, the WHD reaffirmed that clocking in and out—and waiting time at timekeeping stations to do so—are not integral and indispensable to an employee’s principal activities, provided they occur before the first principal activity or after the last principal activity of the day.
Bottom line: Whether a pre-shift activity is compensable under the FLSA is a fact-specific inquiry. The analysis may differ under state law as discussed below.
The De Minimis Doctrine: Narrow Application to Regular, Predictable Work
The FLSA does not require employers to pay employees for “insubstantial or insignificant periods of time beyond the scheduled working hours.” 29 C.F.R. § 785.47. Whether time is “de minimis,” and thus noncompensable, depends on three factors: (1) the practical administrative difficulty of recording the time; (2) the aggregate amount of compensable time involved; and (3) the regularity with which the work occurs. (Opinion letter at 4 (citing Mazurek v. Metalcraft of Mayville, Inc., 110 F.4th 938, 946 (7th Cir. 2024)).
The opinion letter reinforces that the de minimis doctrine has an increasingly narrow application in the modern workplace. The WHD cautioned that where employees perform compensable work prior to their paid shifts on a daily basis, such work is unlikely to be de minimis. The division was particularly pointed in its discussion of modern timekeeping technology, warning employers to be “particularly careful” about invoking the doctrine given that technological advances have made it possible to track employee work time with increasing precision. Employers should expect “exacting scrutiny” of de minimis claims where employees perform off-the-clock work with any degree of regularity. In the hospital context at issue, for example, where timekeeping systems were capable of capturing actual arrival and departure times, the WHD signaled that administrative difficulty alone would not justify overlooking up to seven minutes of daily pre-shift work across thousands of employees.
Bottom line: It is risky to rely on the de minimis exception under the FLSA. The exception may not even be available under state law as discussed below.
Rounding Practices: Must Be Facially Neutral and Neutral in Application
Under 29 C.F.R. § 785.48(b), employers may round employee time to the nearest fraction of an hour, but only if the practice “will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” Courts evaluate rounding practices by examining two requirements: the policy must be facially neutral and it must not consistently favor the employer. (Id. at 4 (citing Corbin v. Time Warner Ent.-Advance/Newhouse P’ship, 821 F.3d 1069, 1075-79 (9th Cir. 2016)).) While fluctuation from pay period to pay period is expected, a neutral rounding practice must “average out in the long term.”
The WHD advised that the hospital’s rounding policy was not neutral. In the hospital at issue, the employer rounded early clock ins (up to seven minutes before the shift) forward to the scheduled start time, while prohibiting early clock outs. The WHD concluded that where employees are performing compensable work during the rounded time, this practice fails on both prongs: It is not facially neutral and it only ever benefits the employer without ever benefiting the employee. Employees who perform compensable work during the early check-in period are always uncompensated for that time and are never afforded an opportunity for over-compensation to offset it. However, the WHD acknowledged that if employees who clock in late are nonetheless credited with starting at their scheduled time, and that practice averages out over time, then the policy would likely comply with Section 785.48(b).
Bottom line: While fraught with risk, rounding may be defensible under the FLSA. Rounding may not be defensible under state law as discussed below. But in an era where timekeeping technology is more precise than ever before, employers should be mindful of whether rounding practices are worth the legal risk.
State Wage-and-Hour Laws
As noted above, even if a practice may be permissible/defensible under the FLSA, it may not be allowable under state law. It is generally understood that California’s wage-and-hour rules differ materially from the rules under the FLSA. What is less understood is that there are a number of other states where the rules differ materially, too.
For example only, the high courts in Illinois and Pennsylvania each held that the wage-and-hour laws in their respective states do not include portal-to-portal exceptions to compensation for preliminary and postliminary work. On the contrary, these courts have held that employees must be paid for any time they are required to be on the employer’s premises. Further, there is no de minimis exception.
Consequently, the answers to the issues in the opinion letter would be different under Illinois and Pennsylvania law. More specifically, employers would have to pay for any pre-shift activities they are required to perform on the premises as well as any waiting time to clock in and out. Also, it is an open issue as to whether rounding would ever be permissible in these states to the extent in any given week an employee is not paid for all the time they in fact work.
Importantly, when developing and auditing their time keeping practices, employers must consider not only the FLSA but also wide-ranging variance among state laws.
The issues addressed in the opinion letter are not the only issues where state laws may differ from the FLSA. For example, the FLSA does not mandate meal or rest breaks for exempt employees. The regulations provide only when nonexempt employees must be paid for such breaks if the employer elects to provide them. In contrast, 21 states (as well as Puerto Rico and Guam) mandate meal and/or rest breaks for nonexempt employees with different rules on the length of such breaks and when they must be paid.
For More Information
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