New DOL Guidance Underscores Employer Obligations for Pre-Shift Activities and Timekeeping Practices

By John F. Lomax and Lian Ascher

The U.S. Department of Labor’s Wage and Hour Division (WHD) has provided recent guidance that is noteworthy for hospital employers but will likely have application to employers in many industries. On May 28, 2026, the WHD issued Opinion Letter FLSA2026-8, addressing whether certain pre-shift activities by hospital employees are compensable and whether the hospital’s rounding practices comply with federal regulations. The WHD concluded that the hospital’s timekeeping and pay practices raised substantial questions as to whether the employer was meeting its obligation to pay for all compensable hours worked under the Fair Labor Standards Act (the Act). The takeaway for shift-based hospital employers: rounding policies and the de minimis doctrine offer limited protection when pre-shift work is regular and predictable, and the employer has reason to know it is occurring.

I. The Background

In the opinion letter, the WHD examined a large public hospital with approximately 18,000 non-exempt employees. The hospital’s timekeeping system rounded any clock-in time within seven minutes before a shift forward to the scheduled start time and rounded any clock-out time within seven minutes after a shift backward to their scheduled end time. The hospital explained that employees were permitted to clock in early to avoid tardiness caused by bottlenecks at timekeeping stations. Some non-exempt employees routinely engaged in pre-shift activities immediately after clocking in, including locating work assignments, completing documentation, assigning employees to work locations, and receiving handoff reports from colleagues. The hospital did not pay for any of this time, despite being administratively capable of capturing it with its current timekeeping system.

The WHD addressed four central questions: (1) whether pre-shift work performed after clocking in was compensable under the FLSA; (2) whether time spent waiting at timekeeping stations constituted compensable work time; (3) whether the hospital could invoke the de minimis doctrine to exclude daily time losses of up to seven minutes per employee; and (4) whether the hospital’s policy of rounding early clock-ins forward while prohibiting early clock-outs complied with applicable regulations.

II. The Wage and Hour Division’s Analysis

The Act requires employers to pay at least the federal minimum wage for all hours worked and overtime for hours exceeding 40 in a work week. The Act requires compensation for all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace, including certain preparatory and concluding activities. An employer must pay for all work it knows or has reason to know is being performed, even time worked outside of scheduled shift times.

a. Compensability of Pre-Shift Activities

The determination of whether pre-shift activities are compensable turns on whether time spent on those activities is “integral and indispensable” to the employee’s principal job duties. The WHD found that for respiratory therapists, receiving handoff reports regarding patient status was essential because they could not safely begin patient care without understanding patient’s current medical condition, ongoing treatments, and possible changes that occurred during the prior shift. Locating work assignments similarly qualified because the respiratory therapists needed to know which patients they were responsible for before performing treatment.

The WHD emphasized that compensability depends on both the activities at issue and the principal job duties of the specific position. As such, the WHD explained that it was unable to draw broad conclusions about the compensability of pre-shift administrative activities for all 18,000 hospital employees as they held a variety of positions. An activity that is “integral and indispensable” for one position may be merely preliminary for another. Importantly, however, the WHD definitively stated that time spent waiting in line to clock in or out is not compensable.

b. The De Minimis Exception

The hospital argued that up to seven minutes of daily pre-shift time was insignificant and could be disregarded, relying on a concept known as the de minimis exception. The WHD explained that the de minimis doctrine applies only to “uncertain and indefinite periods of time involved of a few seconds or minutes duration” where the failure to count time is “justified by industrial realities.” The WHD emphasized that if a small amount of work is performed sporadically or irregularly it may be de minimis, but if the work occurs regularly, the exception does not apply. The WHD evaluated the practical administrative difficulty of recording the time, the total amount of compensable time involved, and the regularity of the work in making its determination. Ultimately, it concluded that it could not make a general determination given the large number of employees and the likely differences in the extent to which they were performing principal activities before their shifts. Nevertheless, the WHD cautioned employers to be “particularly careful about how and to what extent they apply the de minimis doctrine” and warned that “employers should expect exacting scrutiny of de minimis claims where employees perform off-the-clock work” on a regular basis. In other words, employers should not rely on the de minimis doctrine to avoid paying for pre-shift work that is essential to the position and regularly performed, regardless of how insignificant it may seem.

c. The Rounding Policy

Federal regulations allow employers to round employee time to the nearest fraction of an hour, but only if the rounding policy is facially neutral, meaning it may benefit both the employee and the employer, such that it essentially averages out over time. In other words, the critical question is whether a rounding practice, evaluated over a period of time, is facially neutral and operates neutrally such that it does not systematically undercompensate employees for hours worked.

In evaluating the rounding at the beginning of an employee’s shift, the WHD focused on whether the employees were in fact performing compensable work after clocking in but before their paid shifts. Ultimately, the WHD found that the rounding policy was not facially neutral as it only ever benefitted the employer without ever benefiting the employee. The WHD noted that if the hospital’s rounding practice were facially neutral and employees could actually benefit from rounding in other circumstances — for example, if employees who clocked in up to seven minutes late were nonetheless credited with starting at their scheduled time and that practice averaged out over time — then the policy would more likely comply.

While the opinion letter related to a hospital, its reasoning extends well beyond the hospital setting. Any employer with non-exempt employees who routinely perform preparatory tasks before their paid shifts begin should take note.

III. The Takeaways

First, if non-exempt employees are performing “pre-shift” tasks that are intrinsically related to their principal job duties and cannot be dispensed with, employers must compensate them for it.

Second, if employees are performing “off-the-clock” work with any regularity, employers should not rely on the de minimis exception. Rather, employers should establish and enforce clear policies prohibiting employees from performing work-related activities while off the clock.

Third, employers with rounding policies should ensure that such policies are facially neutral and average out over time.