Wage and Hour Division opinion letter addresses hospital pre-shift work, waiting time, de minimis time and rounding
As of our last check on November 2, 2026, this is agency guidance, not a rule. It explains how the agency reads the law and does not create a legal requirement on its own.
In short
- What changed
- The Department of Labor's Wage and Hour Division (WHD) issued an opinion letter applying the Fair Labor Standards Act (FLSA) to a hospital's pre-shift work, clock-in waiting time, de minimis claims and time rounding.
- Who's affected
- The letter answers one employee of a public hospital, but its reasoning is relevant to any employer covered by the FLSA whose non-exempt employees clock in early or whose time is rounded.
- What to do
- This opinion letter creates no new legal requirement. Employers that round early clock-ins to the shift start, let workers begin tasks before their paid shift, or treat short pre-shift periods as de minimis may want to review those practices against WHD's reasoning.
What changed
-
From the sourceOpinion, A. Compensability of Pre-Shift Activities and Time Spent Waiting at Timekeeping Stations
at least some of these activities appear to be integral and indispensable to the employees’ principal job duties, and are therefore compensable hours worked.
Also: Opinion, A. Compensability of Pre-Shift Activities and Time Spent Waiting at Timekeeping Stations
receiving handoff reports regarding patient status is essential because a respiratory therapist cannot safely begin patient care without understanding each patient’s current medical condition
WHD says at least some pre-shift tasks the hospital's employees perform after clocking in are compensable hours worked because they are integral and indispensable to their jobs. Examples are respiratory therapists receiving patient handoff reports and locating their work assignments.
-
From the sourceOpinion, A. Compensability of Pre-Shift Activities and Time Spent Waiting at Timekeeping Stations
On the other hand, time spent waiting in line to clock in and out is not compensable.
Also: Footnote 2
This general principle applies only to time before or after the workday
WHD says time spent waiting in line to clock in and out is not compensable when it happens before the first or after the last principal activity of the workday. Waiting time during the workday is treated differently.
-
From the sourceOpinion, B. Applicability of the De Minimis Doctrine
To the extent that each day, employees are performing compensable work prior to their paid shifts commencing, such work is unlikely to be de minimis.
Also: Opinion, B. Applicability of the De Minimis Doctrine
we are unable to conclude that the time is—or is not—de minimis.
WHD says compensable work done every day before the paid shift is unlikely to be de minimis, but it could not conclude whether the hospital's pre-shift time is or is not de minimis on the facts given.
-
From the sourceIntroduction
If employees are in fact performing compensable work before their scheduled shift begins, the employer’s rounding practice at the beginning of the day is neither facially neutral nor neutrally applied
Also: Opinion, C. Rounding Policy Compliance with 29 C.F.R. § 785.48(b)
the hospital’s rounding practice is inconsistent with section 785.48(b) and would result in a failure to properly record, as well as potentially to properly compensate for, all hours worked.
WHD says that if employees do compensable work before their shift, rounding early clock-ins up to the scheduled start is neither facially neutral nor neutrally applied, and is inconsistent with the Department of Labor's rounding regulation in the Code of Federal Regulations (CFR) at 29 CFR 785.48(b).
-
From the sourceOpinion, C. Rounding Policy Compliance with 29 C.F.R. § 785.48(b)
if employees who clock in up to 7 minutes late are nonetheless credited with starting at their scheduled time and that practice averages out over time to offset any work time lost due to the rounding of early check-ins to the scheduled shift time—then the policy would likely comply with section 785.48(b).
WHD says a rounding policy would likely comply if employees also benefit from it, for example if late clock-ins of up to 7 minutes are credited at the scheduled start and this averages out over time.
-
From the sourceOpinion, C. Rounding Policy Compliance with 29 C.F.R. § 785.48(b)
we have no basis on which to conclude that your employer’s prohibition of early clock-outs constitutes non-neutral rounding under section 785.48
WHD found no basis to treat the hospital's ban on early clock-outs as non-neutral rounding, because nothing showed employees work after their paid shift ends.
-
From the sourceClosing
This interpretation may be relied upon in accordance with section 10 of the Portal-to-Portal Act
The letter is an official interpretation that may be relied on under section 10 of the Portal-to-Portal Act.
Who is affected
-
From the sourceBackground
You represent that you are a non-exempt employee of a public hospital that employs approximately 18,000 non-exempt employees.
The request came from a non-exempt employee of a public hospital with about 18,000 non-exempt employees.
-
From the sourceNote following signature
This opinion is based exclusively on the facts and circumstances described in your request
Also: Note following signature
The existence of any other factual or historical background not contained in your letter might require a conclusion different from the one expressed herein.
The opinion is based only on the facts the requester described, and WHD says other facts might lead to a different conclusion.
-
Our analysisOpinion, B. Applicability of the De Minimis Doctrine
Employers, including the hospital at issue here, should nonetheless be particularly careful about how and to what extent they apply the de minimis doctrine.
Also: General Legal Principles, A. The Fair Labor Standards Act
The FLSA requires covered employers to pay all non-exempt employees at least the federal minimum wage for all hours worked.
Although the letter answers one hospital's facts, WHD addresses some of its cautions to employers generally, so its reasoning is relevant to any covered employer with non-exempt employees who clock in early or whose time is rounded.
What it means in practice
-
Our analysisIntroduction
If employees are in fact performing compensable work before their scheduled shift begins, the employer’s rounding practice at the beginning of the day is neither facially neutral nor neutrally applied
Employers that round only early clock-ins to the shift start, with no offsetting rounding in the employee's favor, may face minimum wage or overtime exposure if employees start work before the paid shift.
-
From the sourceOpinion, B. Applicability of the De Minimis Doctrine
employers should expect exacting scrutiny of de minimis claims where employees perform off-the-clock work with any degree of regularity.
WHD says employers should expect exacting scrutiny of de minimis claims where off-the-clock work happens with any regularity, given modern electronic timekeeping.
-
From the sourceOpinion, B. Applicability of the De Minimis Doctrine
if the employer enforces such a rule, it may be excused from compensating occasional off-the-clock work done in violation of such policies and without the employer’s actual or constructive knowledge.
Also: Opinion, B. Applicability of the De Minimis Doctrine
The mere promulgation of a rule against such work is not enough.
WHD says an employer that clearly prohibits work outside scheduled time and enforces that rule may be excused from paying for occasional off-the-clock work it does not know about, but announcing a rule alone is not enough.
-
From the sourceFootnote 3
Whether such improper recording would create a violation of the FLSA’s minimum wage or overtime requirements will depend on whether, after properly accounting for all of an employee’s hours worked during a workweek
WHD says whether improper recording of hours leads to a minimum wage or overtime violation depends on the employee's total hours and pay for the workweek.
What to do
AmendSignal analysis sorts these by whether this document changes them.
Already required
-
From the sourceGeneral Legal Principles, A. The Fair Labor Standards Act
The FLSA requires covered employers to pay all non-exempt employees at least the federal minimum wage for all hours worked.
Pay non-exempt employees at least the federal minimum wage for all hours worked. The letter describes this existing FLSA requirement.
-
From the sourceGeneral Legal Principles, A. The Fair Labor Standards Act
the Act requires payment “at a rate not less than one and one-half times the regular rate at which [the employee] is employed” to all non-exempt employees for all hours worked in excess of 40 hours in a workweek.
Pay non-exempt employees overtime at one and one-half times their regular rate for hours worked over 40 in a workweek. The letter describes this existing FLSA requirement.
-
From the sourceGeneral Legal Principles, A. The Fair Labor Standards Act
an employer must pay for all compensable work that it knows or has reason to know is being performed.
Pay for all compensable work the employer knows or has reason to know is being performed, even if it was not requested. The letter describes this as existing law under the FLSA.
-
From the sourceGeneral Legal Principles, D. Rounding Practices and Aggregate Impact
This practice, however, is only acceptable if it “will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.”
If rounding employee time, use a practice that does not, over time, fail to pay employees for all time actually worked. The letter describes this existing Department of Labor rounding regulation under the FLSA (29 CFR 785.48(b)).
Worth considering
-
Our suggestionOpinion, C. Rounding Policy Compliance with 29 C.F.R. § 785.48(b)
if employees who clock in up to 7 minutes late are nonetheless credited with starting at their scheduled time and that practice averages out over time to offset any work time lost due to the rounding of early check-ins to the scheduled shift time—then the policy would likely comply with section 785.48(b).
Consider reviewing your rounding rules to check that they can benefit employees as well as the employer (for example, how late clock-ins are treated) and that they average out over time.
-
Our suggestionOpinion, A. Compensability of Pre-Shift Activities and Time Spent Waiting at Timekeeping Stations
at least some of these activities appear to be integral and indispensable to the employees’ principal job duties, and are therefore compensable hours worked.
Consider identifying tasks employees do between clocking in and the scheduled shift start, such as handoff reports or finding assignments, and whether that time is being paid.
-
Our suggestionOpinion, B. Applicability of the De Minimis Doctrine
employers like the hospital here should consider proactive steps to implement and enforce clear policies prohibiting employees from performing any work-related activities outside their scheduled shift.
Consider adopting a clear written policy against work outside scheduled shifts, with a way for employees to report extra time, and enforcing it in practice.
-
Our suggestionOpinion, B. Applicability of the De Minimis Doctrine
employers should expect exacting scrutiny of de minimis claims where employees perform off-the-clock work with any degree of regularity.
Consider using your timekeeping system data to test whether any time you exclude as de minimis is actually regular and recordable.
Open questions
The source leaves these open. We'll update this record if a later document answers them.
-
Are other pre-shift administrative tasks, such as completing accountability documentation, compensable for every job type?
-
How regular or how long must pre-shift work be before it can no longer be treated as de minimis?
-
Can employers whose facts differ from the requester's rely on this letter?
Related changes
History
-
FLSA2026-8: Whether certain pre-shift activities by hospital employees are compensable work and, if so, whether the hospital's practice of rounding employees' clock-in time to their scheduled shift start time is permissible. Source (opens in a new tab)