On May 28, 2026, the United States Department of Labor (DOL) Wage and Hour Division (WHD) issued an opinion letter addressing several questions about a public hospital’s compensation practices. The WHD expressed that the hospital’s failure to pay employees for compensable pre-shift work and its rounding practices raise serious questions as to its compliance with the Fair Labor Standards Act (FLSA).
Below, KingSpry’s Employment Law Chair, Avery E. Smith, Esq., reviews the WHD’s recent guidance and outlines practical steps covered employers can take to ensure compliance with the FLSA.
The Employment Scenario
A public hospital employs at least 18,000 non-exempt employees and permits them to clock in up to seven minutes before their scheduled shift due to bottlenecking at the limited number of timekeeping stations. The limited number of time-keeping stations also causes employees to clock out after their scheduled shifts end.
The hospital set its timekeeping stations to round times to the scheduled shift times. For example, if an employee clocks in at 6:53 AM, it will be rounded up to their 7:00 AM scheduled start time. This is problematic for certain non-exempt employees, such as respiratory therapists, because they routinely perform “pre-shift” work activities immediately after clocking in—despite their time being rounded up to 7:00 AM. The hospital does not pay these employees for this work, which involves principal activities, such as receiving handoff reports about patients and locating work assignments.
Issues
The WHD addressed four questions:
- Is pre-shift work performed after clocking in compensable under the FLSA?
- Is time spent waiting to clock in and out compensable work?
- Can the hospital raise the de minimis doctrine to exclude daily, predictable time losses from employees’ pay?
- Does the hospital’s rounding policy comply with the FLSA?
Pre-Shift Work
The FLSA defines “employ” to include suffering or permitting work. This means work suffered or permitted, even if not expressly assigned by the employer, is compensable work time. Accordingly, employers must pay their employees for all compensable work that it knows or has a reason to know is being performed.
Employers, however, are not required to compensate employees for activities that are preliminary or postliminary to their principal activities. Principal activities are those that are “integral and indispensable” to the employee’s job. For example, mandatory equipment checks, cleaning machines before use, or logging into computer systems required to begin work have considered principal activities by courts.
In this case, the WHD concluded that the hospital’s failure to compensate respiratory therapists for receiving handoff reports about patients and locating work assignments (before their scheduled shift technically starts) raises substantial questions of non-compliance with the FLSA. The WHD noted that these assignments are integral and indispensable, because respiratory therapists cannot safely begin patient care without understanding patients’ current medical information and they must know which patients they are responsible for before beginning their treatment duties.
Accordingly, these pre-shift activities are compensable, and the hospital should be paying respiratory therapists for this time. Time spent waiting in line to clock in and out, however, is not compensable.
De Minimis Argument
While covered employers must pay employees for all hours worked, “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” The Supreme Court has held that when issues concern only a few seconds or minutes of work, they are de minimis.
Whether time is de minimis is a fact-specific analysis, considering (1) the practical administrative difficulty of recording the time; (2) the total amount of compensable time involved; and (3) the regularity with which the work occurs.
Here, the WHD could not conclusively say whether the employees’ pre-shift time is de minimis. It did send a broader message to all covered employers, however, providing that they should “be particularly careful about how and to what extent they apply the de minimis doctrine.” Given technological advancements, employers should expect strict scrutiny when it comes to their de minimis claims.
The WHD also encouraged employers to take proactive steps to avoid employee performance of work-related activities outside of their scheduled shift. For example, employers can adopt and enforce clear policies prohibiting employees from engaging in principal duties before or after their scheduled shifts. “[Employers] cannot sit back and accept the benefits without compensating for them,” the WHD said.
Rounding Practices
Finally, the WHD explained that covered employers may practice time rounding, but they must do so only under specific conditions. Time rounding is only permissible when, evaluated over a period of time, it “is facially neutral and operates neutrally such that it does not systematically undercompensate employees for hours worked.” For example, a rounding practice that consistently favors the employer (by rounding employees’ time up such that they lose minutes), is most likely impermissible.
In this case, where employees are performing pre-shift, compensable work, and the hospital always rounds up to the scheduled start time, the hospital always benefits. Such a policy is not facially neutral, because it only ever benefits the hospital without ever benefiting the employee.
Key Takeaways for Employers
While the WHD’s opinion letter is specific to the hospital in question, it provides practical guidance for other covered employers to ensure compliance with the FLSA. Covered employers are encouraged to:
- Cleary define compensable work time, explaining what constitutes integral and indispensable activities.
- Review and update timekeeping policies, requiring employees to accurately record all time worked and prohibiting pre- or post-shift work.
- Train supervisors and managers to not require or expect employees to conduct principal activities outside of their scheduled working hours.
- Adjust official start times to account for compensable work, such as mandatory equipment checks, cleaning machines before use, or logging into computer systems.
- Compensate small fractions of time when possible and avoid heavy reliance on the de minimis doctrine.
- Post clear documentation of required tasks and procedures at timekeeping stations to ensure employees know when their shift starts and what they should and should not be doing beforehand.
- Consult legal counsel and human resources professionals to evaluate compliance with the FLSA.
