Off-the-Clock Work and FLSA Compliance: New DOL Opinion Letter FLSA2026-8

A new DOL opinion letter addresses off-the-clock work, rounding policies, and the de minimis defense – and the conclusions should prompt a hard look at pre-shift timekeeping practices.

The question came from a public hospital with roughly 18,000 non-exempt workers. The DOL responded by issuing Opinion Letter FLSA2026-8 on May 28, 2026.

When Off-the-Clock Work Is Compensable Under the FLSA?

The hospital allowed employees to clock in up to seven minutes before their shift to avoid bottlenecks at timekeeping stations. The timekeeping system rounded those early clock-ins up to the scheduled start time, so employees were never paid for that window.

The problem: Non-exempt employees, including respiratory therapists, routinely began substantive work immediately after clocking in. That included receiving handoff reports from outgoing colleagues, locating patient assignments and completing accountability documentation.

DOL Findings on Pre-Shift Work, Rounding and De Minimis

The DOL addressed three issues: pre-shift compensability, the de minimis doctrine and the hospital’s rounding policy.

On pre-shift work, the DOL drew a clear line. Activities that are integral and indispensable to an employee’s principal job duties are compensable – whenever they occur. For respiratory therapists, receiving a handoff report on patient status before the shift clock starts is not optional prep. It is essential to performing the job. Waiting in line to clock in, on the other hand, is not compensable, even when it happens on the employer’s premises.

On de minimis, the hospital argued the pre-shift window was de minimis. But the DOL pushed back. Where compensable pre-shift work is regular and predictable, and the employer already has the technology to track exact clock-in times, the de minimis defense is unlikely to hold, the agency determined.

On rounding, the DOL found the hospital’s policy problematic. FLSA rounding is permissible only when the practice is facially neutral and averages out over time, meaning employees must have at least some opportunity to benefit. Here, the hospital’s policy rounded early clock-ins up to the scheduled start time — and only in that direction. If employees were performing compensable work during that window, the policy wasn’t neutral and could produce minimum wage or overtime violations.

Bottom Line: DOL Opinion Letter FLSA2026-8

Employers cannot rely on de minimis claims or one-sided rounding policies to avoid paying for regular off-the-clock work – particularly when modern timekeeping systems make it easy to capture that time.

The DOL’s analysis centered on a hospital, but the legal principles apply to any employer with non-exempt workers who arrive early and start working before the clock officially starts.

Practical Takeaways

For payroll and HR teams, best practices for FLSA compliance include:

• Audit which positions routinely begin substantive duties before the shift starts, and confirm that those employees are being compensated for that time.
• Review rounding policies to ensure employees have at least some ability to benefit. A policy that only ever favors the employer is not neutral rounding.
• Prohibit off-the-clock work in writing – but understand that a written policy doesn’t eliminate the pay obligation. Employers must compensate for work they know or should know is being performed.
• Track pre-shift time by role, not by assumption. Whether an activity is compensable depends on what the employee actually does, not on a blanket classification.