DOL Opinion Letter Addresses Hospital Pre-Shift Pay Practices, De Minimis Doctrine, and Rounding Policies Under the FLSA

Key takeaways

• On May 28, 2026, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued Opinion Letter FLSA2026-8, discussing a hospital’s timekeeping and pay practices. 
• The opinion letter addresses the compensability of pre-shift activities, the applicability of the de minimis doctrine, and the legality of the hospital's rounding policy. 
• The letter offers significant guidance for healthcare employers and other industries where employees routinely perform tasks before their scheduled shifts, and it reinforces the DOL’s increasingly narrow view of the de minimis doctrine in an era of precise electronic timekeeping.

Implications for employers

Certain pre-shift work must be compensated

The opinion letter responded to an inquiry from a nonexempt employee at a large public hospital with roughly 18,000 nonexempt staff. Employees at the hospital regularly performed work-related tasks before their paid shifts, such as pulling up work assignments, completing accountability paperwork, coordinating staffing through communication devices, and receiving patient handoff reports. The hospital allowed employees to clock in up to seven minutes before the shift start to avoid congestion at timekeeping stations, but it automatically rounded those early clock-ins forward to the scheduled start time. It also did not pay for any work performed in that window.

The DOL determined that at least some of these tasks qualify as integral and indispensable to the employees’ principal duties, making them compensable hours worked under the Fair Labor Standards Act (FLSA). Compensable activities that are integral and indispensable may include donning and doffing required protective gear or performing mandatory equipment checks, such as sharpening knives and oiling. As an example, the DOL highlighted respiratory therapists. These workers cannot safely begin treating patients without first reviewing handoff reports to understand each patient's current condition, ongoing treatments, and any changes from the prior shift. Likewise, identifying assigned patients is a necessary prerequisite to performing treatment duties. Given that employees simply cannot do their jobs without first completing these tasks, the DOL determined that the time spent on those additional tasks is compensable regardless of when it occurs relative to the scheduled shift.

Notably, the DOL drew a line between these compensable pre-shift tasks and time spent merely waiting in line to use a timekeeping station, which is not compensable. Waiting to clock in or out, when it occurs before the first principal activity or after the last principal activity of the day, did not qualify as work that is integral and indispensable to the employee’s job under the facts presented in the letter.

The de minimis doctrine’s limited application to routine pre-shift work

The DOL also determined that when employees perform compensable work before their paid shifts on a daily basis, that time is unlikely to qualify as de minimis. The FLSA prohibits employers from arbitrarily failing to count any portion of an employee's fixed or regular working time, no matter how small. 

The opinion letter stressed that technological advances have made it far easier for employers to capture precise work time and that employers should anticipate heightened scrutiny of de minimis arguments whenever off-the-clock work occurs with any regularity. That said, the DOL acknowledged that where pre-shift compensable work is truly irregular, the practical difficulty of recording the time may still support de minimis treatment. Because of the hospital’s large workforce and the variation in whether individual employees consistently perform principal duties between clocking in and the official start of their shift, the DOL stopped short of a definitive conclusion on whether the time at issue was or was not de minimis.

One-sided rounding policies will not survive scrutiny

The opinion letter also evaluated the hospital’s rounding policy, which rounds early clock-ins forward to the scheduled shift start and prohibits early clock-outs. The letter clarified that a rounding policy triggers scrutiny under 29 C.F.R. § 785.48(b) only when employees are actually performing compensable work during the time erased by rounding.

With respect to end-of-shift rounding, the DOL found no issue, because nothing in the record suggested employees were doing compensable work (as opposed to simply waiting to clock out) after their paid shift ends.

At the start of the day, however, the DOL arrived at a different conclusion. If employees are doing compensable work after clocking in but before the paid shift begins, the rounding policy fails the neutrality test under 29 C.F.R. § 785.48(b). This is because it operates exclusively in the employer’s favor and never benefits the employee. Under the facts presented in the letter, workers who perform compensable tasks during the early check-in window are always shortchanged on pay, with no opportunity for the rounding to balance out in their favor over time.

The opinion letter indicated that the policy could pass muster if it were truly bidirectional. For instance, if employees who clock in a few minutes late were still credited with starting on time, and that benefit averaged out over time against the losses from rounding early arrivals, the policy would likely satisfy section 785.48(b).

Practical tips for employers

• Conduct a thorough review of pre-shift and post-shift activities across job classifications to identify which tasks are integral to employees’ core duties and therefore compensable.
• Review rounding policies with an eye toward long-term payroll data to confirm they do not systematically shortchange employees.
• Exercise caution before relying on the de minimis doctrine to avoid paying for pre-shift work that happens on a regular basis, especially when existing timekeeping technology can easily record the time.
• Establish and actively enforce clear policies directing employees not to begin work tasks before their scheduled shift starts.
• Confirm that payroll systems are configured to capture all compensable time, including work performed before or after scheduled shifts, to maintain compliance with the FLSA's minimum wage and overtime requirements.