At the end of May, the U.S. Department of Labor (DOL) published four opinion letters. These letters are the agency’s written guidance on how it would enforce federal law under the circumstances — they are not binding on courts. One letter addresses how federal law allows exempt employees to perform nonexempt work for extra pay, and another approves a bonus program that avoids overtime recalculation.
Now, the final two opinion letters answer questions about federal wage-and-hour topics, including traveling during meal periods, pre-shift activities, waiting time and rounding policies. However, for California employers, these agency guidance letters carry little weight as California wage-and-hour laws differ from federal rules on these issues. While the DOL’s guidance may be helpful for multi-state employers with employees outside of California, California employers should focus on meeting the state’s wage-and-hour requirements.
First, in Opinion Letter FLSA2026-7, the DOL considered whether off-site meal periods were made compensable when employees must spend significant time traveling to get off-site. In this scenario, employees at a large, secure facility get a 30-minute unpaid meal break and are allowed to leave the premises. To get off-site, however, they must pass through security and walk to the parking lot, leaving only 10-15 minutes of actual time off-site.
Under the Fair Labor Standards Act (FLSA), employers are not required to provide meal periods. If employers choose to provide meal periods, however, the federal regulations require that employers relieve employees from duty during that time and state that 30 minutes or more is long enough for a bona fide, non-compensable meal period. If the employer requires an employee to work during the meal period, it becomes compensable time. Federal law doesn’t require absolute freedom for a break to be a non-compensable meal period, and employees can be required to stay on the premises for their meal period.
California employers will note that the federal meal period rules are very different from state rules, which require employers to provide meal periods during which they relieve employees of all duties and relinquish all control over their activities, meaning they can’t be required to stay on the premises.
Applying federal law to the circumstances, the DOL concluded that the employees’ meal period remained non-compensable because the employer relieved employees of their duties for 30 minutes, and the period was sufficient in length to be a bona fide meal period. Since federal law doesn’t require that employees be allowed to leave the premises — only that they be relieved of duty — the employees’ choice to leave the site doesn’t make the time compensable, nor does federal law require the employer to extend the meal period.
Second, in Opinion Letter FLSA2026-8, the DOL considered whether a hospital’s rounding policy complies with the FLSA. The hospital’s nonexempt employees can clock in up to seven minutes early to avoid tardiness that might otherwise be caused by bottlenecks at timekeeping stations. The same limitations may cause employees to clock out after their scheduled shifts.
The employer’s timekeeping system is set up to round these times to the scheduled shift times. For example, a 6:53 a.m. early clock-in time is rounded to 7 a.m. and 7:07 p.m. clock-out time is rounded to 7 p.m. Additionally, many employees perform pre-shift activities immediately after clocking in, even when they clock in early, and these pre-shift activities are integral to employees’ principal job duties.
An employee wrote to the DOL asking whether time spent waiting at timekeeping stations and doing pre-shift work after clocking in earlier were compensable and whether the hospital’s rounding policy complied with federal law.
The DOL concluded that the hospital is likely violating the FLSA. Regarding pre-shift activities, the DOL found that when employees clock in early and immediately perform compensable pre-shift duties within the rounding window, that time must be compensated. Waiting in line for the timekeeping station, however, is not compensable time, according to the DOL.
The DOL next analyzed whether the hospital could rely on the FLSA’s de minimis doctrine to exclude the seven minutes of pre-shift time. Under federal law, the de minimis doctrine allows employers to disregard insubstantial or insignificant periods of off-the-clock work if the time is administratively difficult to record. The DOL concluded that in the hospital’s circumstances, the pre-shift duties are unlikely to be de minimis, though it couldn’t say for certain given the number of employees and variety of duties. The DOL did, however, caution employers about relying on the de minimis doctrine given the technological advances that have made it possible for employers to track employees’ work time with increasing precision. As a reminder, the California Supreme Court rejected the federal de minimis doctrine several years ago.
Lastly, the DOL evaluated the hospital’s rounding policy under the FLSA. Federal law allows a rounding policy only if it is neutral on its face and averages out over time so it doesn’t consistently favor the employer. Under the circumstances presented, however, the DOL noted that the policy doesn’t appear to be neutral.
Employees can clock in early and have their time rounded up but there is no indication that they can clock in late and have their time rounded down to the start of their shift (e.g., clocking in at 7:07 a.m. and rounding it down to 7 a.m.). Similarly, there are no examples of employees being able to clock out from their shift early and have their time rounded up to the end of their shift. Under these facts, the policy doesn’t comply with federal law. The DOL also noted that modern electronic timekeeping makes it easy to capture employees’ working time so employers using rounding policies should expect close scrutiny.
For California employers, California law currently permits neutral rounding practices similar to federal law. California courts, however, are increasingly scrutinizing policies and practices that function to deprive employees of pay in any amount, even seemingly trivial amounts of time. Recent cases have called into question the viability of rounding policies, and one rounding case is currently pending before the California Supreme Court. A best practice is not to round time entries and instead record the actual hours worked and pay employees based on their actual hours worked.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
CalChamber members can read more about Timekeeping and Recording Guidelines in the HR Library. Not a member? See how CalChamber can help you.
