Why seven unpaid minutes before a shift can cost years of back pay
The few minutes your team works before the paid shift starts can be wages you owe, and the penalties stack up faster than most employers expect. Here is who is on the hook, and how to get ahead of it.
A respiratory therapist clocks in at 6:53 for a 7:00 shift. She takes the handoff report on three patients, finds her assignments, and signs the accountability log, all before the clock says her paid shift has started. Her timecard reads 7:00, and she was paid from 7:00. Under a new federal opinion letter, those few minutes were very likely hours worked that should have been paid.
Featured takeaway
Seven minutes a day, five days a week, is about thirty hours a year per employee. At a $20 hourly rate, that is roughly $600 a person that never made it onto a check. Across a hundred non-exempt workers, with a two-year FLSA lookback (three years for willful violations) and back pay that can be doubled as liquidated damages, the seven minutes nobody watched can become a six-figure claim that never showed up in a single payroll run.
Does this apply to your team?
This is not a hospital problem. The new opinion letter interprets the Fair Labor Standards Act, which covers most hourly workforces, so the same logic reaches far past one hospital. Nurses taking report, warehouse staff booting terminals, call agents loading systems, retail crews counting a drawer: if the task is required, predictable, and your system can see when it happened, it may be hours worked. And a written rule against off-the-clock work does not settle it. Under 29 C.F.R. §§ 785.11 through 785.13, if you know or have reason to know the work is happening, it generally has to be paid, policy or not.
What the DOL just said
The guidance is Opinion Letter FLSA2026-8, issued in May 2026. It came from a public hospital with about 18,000 non-exempt employees that let people clock in up to seven minutes early and rounded those punches up to the scheduled start, so the early window was never paid. On paper it looked clean. The problem was what people did in those minutes: taking handoff reports, finding assignments, completing required documentation. That is real work.
The federal rule runs through the Portal-to-Portal Act (29 U.S.C. § 254): pre-shift tasks that are “integral and indispensable” to the main job count as paid time once the employer knows they are happening. The DOL found the handoff reports qualified, because a therapist cannot safely start patient care without first knowing each patient’s condition. Waiting in line to clock in is the opposite, the same distinction the Supreme Court drew in Integrity Staffing Solutions v. Busk. The test is not where the employee is standing. It is whether they have started doing the job.
Why “too small to pay” will not save you
Employers have long leaned on the de minimis doctrine, the rule (29 C.F.R. § 785.47) that lets genuinely tiny, hard-to-track scraps of time go unpaid. The DOL said it does not fit here. When employees do the same compensable work before every shift, and a modern time clock records the exact minute, that time is not insignificant, and the agency promised “exacting scrutiny” of any de minimis claim built on facts like these.
The same time clock that rounded those seven minutes away is the one that could prove the hospital was able to pay them to the minute.
One-way rounding is the trap
Rounding itself is still legal under 29 C.F.R. § 785.48(b), but only when it is neutral on its face and in practice, so it averages out and employees are paid for the time they actually work. The hospital’s rounding only ever moved one way: early clock-ins rounded up to the scheduled start, and the early minutes never counted. The DOL said a one-sided practice like that can create minimum wage and overtime violations once the unpaid time is added back.
A few states go further than the FLSA
Everything above is the federal floor. Some states give employers less room to rely on rounding or the federal de minimis rule. California and Pennsylvania have rejected the federal de minimis defense in major wage cases involving unpaid work time, and Washington employers should not assume the federal “too small to pay” rule will save a rounding practice. In California, unpaid minutes and one-sided rounding can also feed wage-statement, waiting-time, and PAGA exposure across the workforce.
California best practice
In California, the safe move is to pay people for their actual recorded punches and all the time they actually work, instead of rounding. It is the most conservative and defensible position, and it keeps rounding from turning into wage-statement, meal-and-rest, waiting-time, and PAGA claims that multiply across your workforce and pay periods.
Where you operate decides how much risk rounding carries, so confirm your state before you rely on it.
Where VertiSource HR comes in
If you would rather not untangle this alone, that is what a working session is for. We line up your timekeeping setup, your rounding rules, and what each role actually does in the minutes before a shift, then trace one real pay period against the punches to find where pre-shift work is going unpaid, and whether your state expects you to pay to the minute.
This article is general HR information for employers and is not legal, tax, or accounting advice. For related reference, see time and attendance tracking, payroll-close controls, and our HRIS and scheduling platform.
Not sure what your team is doing in the seven minutes before the paid shift starts?
Bring one pay period and your timekeeping rules. We will walk the early-punch window role by role, show you where pre-shift work may be going unpaid, and help you decide what to change before it adds up.
Off-the-clock work: common questions
What did DOL Opinion Letter FLSA2026-8 say about off-the-clock work?
It said that pre-shift activities that are integral and indispensable to an employee’s job can be compensable hours worked, even when they happen in the minutes before a scheduled start. In the case it reviewed, a hospital let employees clock in up to seven minutes early and rounded those punches up to the start time, but employees were already taking patient handoff reports and completing required documentation. On those facts, the Department of Labor treated that time as paid work. It also said that waiting in line to clock in is generally not compensable, even on the employer’s premises.
Is short pre-shift work too small to pay under the de minimis doctrine?
Not reliably. The de minimis doctrine in 29 C.F.R. § 785.47 only lets employers ignore small, irregular amounts of time that are genuinely hard to record. In FLSA2026-8 the Department of Labor said that when employees do compensable work before their shift on a daily basis, the time is unlikely to be de minimis, and modern timekeeping systems that capture the exact clock-in time invite exacting scrutiny of any de minimis claim. A few minutes a day, every day, on a system that can measure it, is much harder to dismiss as de minimis.
When is a timekeeping rounding policy legal under the FLSA?
Under 29 C.F.R. § 785.48(b), rounding is generally allowed when it is neutral on its face and averages out over time, so employees are fully compensated for the time they actually work. A policy that rounds in both directions and washes out across pay periods is usually fine. One-directional rounding that always favors the employer, such as rounding early clock-ins up to the scheduled start and never crediting the employee, struggles to meet that test and can create minimum wage and overtime exposure.
Does California allow time clock rounding?
It is increasingly risky. California courts have questioned why an employer would round at all when the timekeeping system already captures exact punch times, and rounding that leaves employees unpaid for time they worked can trigger claims for unpaid wages, overtime, meal and rest premiums, inaccurate wage statements, and waiting-time penalties, often multiplied across the workforce and every pay period under the Private Attorneys General Act (PAGA). The conservative, defensible approach in California is to pay employees for their actual recorded time rather than rely on rounding.
Disclaimer: This content is for general informational and educational purposes only and does not constitute legal, tax, accounting, or professional advice. Consult a qualified attorney or licensed advisor before making employment, payroll, or compliance decisions. VertiSource HR disclaims all liability for actions taken or not taken based on this material.