Off-the-Clock Work and FLSA Compliance: What DOL Opinion Letter FLSA2026-8 Means for Employers
If your organization relies on rounding policies to handle early clock-ins, or if non-exempt employees routinely perform tasks before their scheduled shift begins, a new Department of Labor opinion letter should be required reading. Issued on May 28, 2026, Opinion Letter FLSA2026-8 addresses off-the-clock work, rounding practices, and the de minimis defense under the Fair Labor Standards Act — and its conclusions carry real consequences for employers across virtually every industry.
The letter was prompted by a public hospital with approximately 18,000 non-exempt employees, but the principles the DOL articulated apply far beyond the healthcare sector. Understanding exactly what the agency said — and what it means for your timekeeping practices — is essential to staying compliant and avoiding costly wage-and-hour liability.
The Facts Behind DOL Opinion Letter FLSA2026-8
The hospital at the center of this opinion allowed non-exempt employees to clock in up to seven minutes before their scheduled shift. The stated purpose was practical: staggering clock-ins helped prevent bottlenecks at timekeeping stations. On its face, that seems like a reasonable operational accommodation.
The problem was what happened after employees clocked in. The hospital's timekeeping system automatically rounded early clock-ins up to the scheduled shift start time, meaning no compensation was recorded or paid for that pre-shift window. At the same time, non-exempt workers — including respiratory therapists — were not simply waiting quietly for their shift to begin. They were working.
Specifically, those employees were receiving handoff reports from outgoing colleagues, locating their patient assignments, and completing accountability documentation — all before the clock, from a payroll perspective, had started. The DOL's analysis of this situation addresses three interconnected issues: pre-shift compensability, the de minimis doctrine, and the validity of the hospital's rounding policy.
When Is Pre-Shift Work Compensable Under the FLSA?
The DOL drew a clear and firm line on this question. Under the FLSA, any activity that is integral and indispensable to an employee's principal job duties is compensable — regardless of when that activity occurs relative to the scheduled shift start time.
For respiratory therapists, receiving a patient status handoff from an outgoing colleague is not optional preparation or a personal choice. It is a functional requirement of the job. Without that information, a respiratory therapist cannot safely or effectively perform their core duties. The DOL concluded that this kind of activity must be counted as compensable work time, even if it falls within the pre-shift window that the rounding policy effectively erases from the payroll record.
This reasoning extends well beyond respiratory therapy. Any non-exempt employee who reviews shift notes, checks in with a departing coworker, logs into systems, or performs safety checks before their scheduled start time may be engaged in compensable work — and employers who are not capturing and paying for that time may be exposed to wage-and-hour claims.
The De Minimis Doctrine: A Defense With Limits
Many employers have historically leaned on the de minimis doctrine as a defense against wage claims involving small amounts of pre- or post-shift time. The doctrine holds that minor, trivial, or administratively burdensome-to-track increments of time need not be compensated. In the right context, it remains a valid legal defense.
But Opinion Letter FLSA2026-8 makes clear that the de minimis doctrine has real limits — and that employers cannot invoke it simply because individual increments of unpaid time appear small. The DOL's analysis emphasizes that the doctrine does not apply when the work in question is a regular, predictable, and integral part of the employee's duties. When non-exempt workers routinely perform substantive job functions before their scheduled start time, that pattern of unpaid work is not trivial. It is systematic, and it is compensable.
Employers who have been relying on the de minimis defense to cover consistent pre-shift or post-shift activities should carefully review whether that reliance is legally sound in light of this opinion.
Rounding Policies Under Scrutiny
Time-rounding policies are common. Many employers use systems that round clock-in and clock-out times to the nearest quarter hour or other increment, arguing that rounding benefits employees and employers roughly equally over time. The DOL has historically permitted rounding under the FLSA when the policy is neutral and does not systematically undercompensate employees.
The hospital's policy, however, failed that neutrality test. By consistently rounding early clock-ins forward to the scheduled start time — and never rounding in the employee's favor — the policy systematically resulted in unpaid work time. When that unpaid time coincided with substantive, integral job duties, the rounding practice became legally indefensible.
Employers using rounding policies should audit whether those policies operate neutrally in practice, not just in theory. If rounding consistently eliminates compensable work time, the policy likely runs afoul of the FLSA.
What Employers Should Do Now
Opinion Letter FLSA2026-8 is a signal that the DOL is paying close attention to the gap between when non-exempt employees start working and when employers start paying them. Here are concrete steps to take in response.
- Audit pre-shift and post-shift activities. Identify what non-exempt employees are actually doing in the minutes before and after their scheduled shifts. If those activities are integral to their job duties, they are likely compensable and must be captured in timekeeping records.
- Review rounding policies for systematic bias. Analyze whether your rounding system consistently rounds in one direction. If it does, correct the policy or eliminate rounding in favor of precise time capture.
- Reassess your reliance on the de minimis defense. If pre-shift or post-shift work is a regular, predictable occurrence tied to core job functions, the de minimis doctrine likely will not protect you. Build that time into your compensation structure instead.
- Update timekeeping policies and train supervisors. Policies should clearly communicate that non-exempt employees must not perform work before clocking in — or that such work will be captured and compensated. Supervisors should be trained to recognize and report off-the-clock work.
- Consult legal counsel. The specific facts of your workforce and industry matter. An employment attorney familiar with FLSA wage-and-hour law can help you evaluate your exposure and remediate any compliance gaps before they become claims.
The Bottom Line
DOL Opinion Letter FLSA2026-8 reinforces a principle that has always been at the core of the FLSA: if an employee is performing work that benefits the employer and is integral to their job, that work must be compensated — full stop. The fact that it occurs a few minutes before a scheduled shift, or falls within a rounding window, does not change the legal obligation.
For employers managing large non-exempt workforces, especially in industries like healthcare, manufacturing, retail, and logistics where pre-shift preparation is common, this opinion letter is a timely reminder to take a hard look at timekeeping practices. The cost of a proactive compliance review is far smaller than the cost of a class-action wage claim or a DOL investigation.