“De Minimis” Is Not a Magic Eraser for Seven Daily Minutes of Off-the-Clock Work

Seven minutes doesn’t sound like much. Multiply it by 18,000 employees, every workday, and it’s a wage and hour audit waiting to happen.

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TL;DR: The Department of Labor’s Wage and Hour Division issued Opinion Letter FLSA2026-8 on May 28, 2026, concluding that pre-shift work integral to employees’ principal duties — such as respiratory therapists receiving handoff reports and locating patient assignments — is compensable under the FLSA, while waiting in line to clock in is not. A hospital’s rounding policy that exclusively benefits the employer by rounding early clock-ins up to the scheduled start time is not facially neutral and may violate the FLSA if employees are performing compensable work during that window. The de minimis doctrine provides no refuge where compensable pre-shift work is regular and the employer has the technology to track it.

📄 Read Opinion Letter FLSA2026-8

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A Hospital, 18,000 Employees, and a Seven-Minute Gap

A non-exempt employee at a large public hospital asked the Department of Labor’s Wage and Hour Division whether three practices complied with the FLSA: the hospital’s treatment of pre-shift activities, its use of the de minimis doctrine, and its clock-rounding policy.

Employees could clock in up to seven minutes early to avoid bottlenecks at timekeeping stations. The system rounded those early clock-ins up to the scheduled start time, so employees were never paid for that window. Non-exempt staff, including respiratory therapists, routinely began substantive work immediately after clocking in — locating assignments, receiving handoff reports from outgoing colleagues, completing accountability documentation.

Pre-Shift Handoff Reports Are Compensable. Waiting in Line Is Not.

The Division drew a clear line. Activities “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 is not optional prep — it is essential to safe patient care. Waiting in line to clock in is different: that time is preliminary to the workday and not compensable, even on the employer’s premises.

Because whether a pre-shift activity is integral and indispensable depends on what the employee actually does, employers with large, diverse workforces need to run that analysis role by role.

De Minimis Has Limits, and Technology Shrinks Them

The hospital argued the seven-minute window was de minimis. The Division was not persuaded for regular, predictable compensable work. The regularity of the work, the hospital’s existing ability to track exact clock-in times, and the aggregate impact across a large workforce all undercut that defense.

The Rounding Policy Only Works One Way — Which Is the Problem

FLSA rounding is permissible only if the practice is facially neutral and averages out over time. This hospital’s policy rounded early clock-ins up to the scheduled start time, and only in that direction — employees never benefited. If employees were performing compensable work during that window, the Division concluded the policy was not neutral and would produce minimum wage or overtime violations.

The end-of-day rounding was a different story: rounding late clock-outs down to the scheduled end time raised no FLSA issue because no one was doing compensable work after the shift. That asymmetry is the point.

Three Things to Get Right Before Your Next Wage and Hour Audit

Pre-shift compensability runs by role, not by assumption. Audit which positions routinely begin substantive duties before the shift clock starts and whether those employees are being paid for that time. A blanket policy that ignores role-specific duties creates exposure across every affected position.

A rounding policy that only ever benefits the employer is not neutral rounding — it is underpayment. Review your timekeeping system and confirm employees have at least some ability to benefit from rounding as well.

The de minimis defense has a regularity problem. If your timekeeping system already tracks exact arrival times and the same employees are doing the same pre-shift tasks every day, arguing de minimis is a losing position. Clear, enforced prohibitions on off-the-clock work are a far more defensible posture.

The DOL’s analysis was written for a hospital, but it applies to any employer with non-exempt workers who arrive early and start working. Seven minutes per employee per day has a way of becoming a very large number.