WHAT HAPPENED
The U.S. Department of Labor's Wage and Hour Division issued Opinion Letter FLSA2026-8 on May 28, 2026, in response to a large public hospital's timekeeping and pay practices affecting approximately 18,000 nonexempt employees. The letter delivers three significant rulings with direct implications for hospitals and health systems nationwide.
THE THREE RULINGS YOU NEED TO KNOW
First, pre-shift clinical work is compensable. Tasks performed before the official shift start, including reviewing patient handoff reports, pulling work assignments, completing accountability paperwork, and coordinating staffing, are compensable hours worked under the FLSA when they are integral and indispensable to an employee's principal duties. The DOL used respiratory therapists as a direct example. They cannot safely treat patients without first reviewing handoff reports. That time must be paid.
Second, the de minimis doctrine is effectively dead for routine pre-shift work. The FLSA prohibits employers from arbitrarily failing to count fixed or regular working time, no matter how small. The DOL explicitly stated that modern electronic timekeeping systems eliminate the historical administrative difficulty argument. If pre-shift compensable work happens regularly, employers should expect zero de minimis protection.
Third, one-sided rounding policies will not survive. The hospital's policy of automatically rounding early clock-ins forward to the scheduled shift start, while never rounding in the employee's favor, was flagged as legally indefensible. Rounding policies must be neutral and must benefit employees as often as employers over time.
WHY THIS MATTERS FOR HEALTHCARE HR LEADERS
This opinion letter is not theoretical. It was issued in direct response to a real hospital's real practices. Hospitals and health systems structurally require nonexempt clinical staff, nurses, respiratory therapists, CNAs, surgical techs, and others, to perform clinically necessary tasks before their scheduled shift begins. When those minutes are not captured and compensated, they accumulate daily across large workforces into significant FLSA collective action exposure and state wage and hour liability.
In states like California, New York, and Illinois where state wage law exceeds FLSA protections, the exposure is even greater.
ACTION STEPS FOR HEALTHCARE HR
→ Audit pre-shift timekeeping practices across all facilities and roles. Prioritize clinical roles where pre-shift tasks are structurally required for patient safety.
→ Review your rounding policy immediately. If your system only rounds in the employer's favor, it must be corrected or eliminated.
→ Configure timekeeping systems to capture and compensate all time worked including pre-shift activity, rather than relying on rounding or de minimis arguments.
→ Engage employment counsel to assess retroactive FLSA and state wage exposure before a complaint or audit surfaces it first.
→ Retrain managers and supervisors. They must never discourage early clock-ins when pre-shift work is clinically required.
Immediate review recommended. Retroactive liability exposure is active now.
Citation: DOL Wage and Hour Division, FLSA Opinion Letter FLSA2026-8, 2026. Ashurst Perkins Coie, 2026.
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