The DOL Issued 3 Opinion Letters this Month – Time to Pay Attention! Today’s Focus - The Pre-Shift Activities DOL Opinion Letter

Ever since the Department of Labor (“DOL”) stopped wasting resources feeding new rules directly into the Eastern District of Texas’ ever-running shredder, the DOL has had hundreds of previously wasted hours to burn, and we’re glad to see that they’re putting that time to good use. 

Today on the DOL’s docket: an Opinion Letter touching on pre-shift work, de minimis time, and clock rounding.

Before we start, just a quick moment of education:  a DOL Opinion Letter is not a new rule. Instead, it is the DOL offering its opinion on the interpretation of an existing rule. An Opinion Letter is literally the DOL stating its opinion on tricky legal issues in a sincere and good-faith effort to assist employers in complying with laws that often seem written with the intent to trick good and honest folks into accidental violations. Basically, since judges are not allowed to entertain hypotheticals (“Would it be illegal if…?”), the DOL will occasionally respond to such inquiries. 

DOL Opinion Letters are non-binding advice, so the Eastern District of Texas can’t throw such DOL Opinion Letters out because there’s essentially nothing to throw out; until someone relies upon the DOL’s interpretation in court, an Opinion Letter is just a scholarly article published for educational purposes. 

Pre-shift work DOL Opinion Letter

In this Opinion Letter the DOL reminds employers that any activities “integral to the job” – a phrase which here means “work that is essential to performing the job safely and correctly” – always represent compensable time. This means that the very first thing (non-exempt (i.e. most)) employees do when they get to work should be clock-in. Because the very instant they perform an “integral duty” off-the-clock, they – and therefore the employer – are in violation of the federal Fair Labor Standards Act. 

In the hypothetical the DOL was addressing, employees could clock in just a few minutes early to avoid “bottlenecks” in the timekeeping system. Those early arrivals were rounded up to the scheduled start time, meaning that most employees had a few minutes – seven (7) or less, by all accounts – of uncompensated working time every shift, despite the fact that employees routinely started work immediately upon their arrival.

If that small amount of time sounds negligible, consider that we’re talking about seven (7) minutes a day, multiplied by the number of non-exempt employees, for double-damages plus attorneys fees, for a span of two (2) years; for a business with, say, fifty-plus (50+) employees, that could easily spell bankruptcy.  “But surely seven (7) minutes a day is just a de minimus span of time! It’s practically an accounting error!” 

You’re not wrong, hypothetical strawman, but you are using “de minimus” incorrectly. De minimus work is “Hey Employee, on your way out, could you toss the recycling in the bin?” Provided that this is not a regular occurrence – “regular” or “predictable” work cannot be de minimus – such random, incidental actions need not be compensated, even where they are tangential to the employment. But don’t get any ideas here, because de minimus work is, by definition, a sporadic and incidental detour. The very moment you plan for de minimus work, it’s no longer de minimus. So, “Hey Employee, on your way out, could you toss the recycling in the bin?” is de minimus, provided you don’t ask them that every other Friday. Beyond that, de minimus only applies to truly incidental work; there’s no bright-line rule here, but anything over one (1) minute is pushing it. So, when you ask your employee to take out the recycling, be sure the bin is actually on the way to their car, because if it’s on the other side of the lot…. It is probably not actually de minimus. 

“Ok, so, this de minimus thing means rounding down a timeclock is more or less alright, provided it’s for less than a minute, and you don’t make a habit of it?”

Absolutely not! De minimus and rounding are two separate issues. De minimus is designed so that the employee from our last example would not be required to clock back in, pick up the recycling, deposit it into the bin, and then clock out again for a grand total of thirty-six (36) seconds of compensable time. Rounding is a whole different animal, where an employer – or, more likely an automated timekeeping system – rounds to the nearest minute-mark to make paycheck math more palatable. 

Rounding is only lawful if it goes both ways. You can round if you round to the nearest minute (or even five-minutes, if you’re feeling brave), but you cannot round down to the nearest minute. See the difference? If rounding results in a roughly equal distribution of overcompensation and undercompensation, then it’s a permissible accounting shortcut. But if the rounding tends to benefit the employer more than the employee, that’s not rounding, that’s just wage-theft. 

Speaking of parking lots, here’s another intriguing hypothetical the DOL entertained this week: what happens where an employer’s facilities are so vast – say, an Amazon warehouse, or even just an especially large Buc-ees – that it takes employees 10 – 15 minutes to get between their vehicles and their workstations? Is that compensable time?

At the risk of oversimplifying, the DOL’s answer is “no.” The Portal-to-Portal Act covers the trip from the car to the actual work area, that much is elementary; the tricky part arose in relation to temporary breaks: if an employee has thirty (30) minutes for lunch, but half of that is spent walking to and from their vehicle, is that really an “uninterrupted” break, such that an employee can be required to clock out? Insofar as the DOL is concerned, the answer here is “yes.” Provided an employe is completely relieved of all duty, the fact that accessing their vehicle is inconvenient doesn’t change the “paid vs. unpaid break” analysis which, as a refresher, is as simple as: uninterrupted breaks > twenty (20) minutes may be unpaid, while interrupted breaks, or breaks lasting < twenty (20) minutes, must be paid. 

We have to say, we’re really happy to see the DOL settling into its new niche. It was hard to watch this once proud organization take “L” after “L,” and frankly, it put us in a very awkward position every time the DOL would announce their latest folly. If we reported on it, 99% of the time we’d just have to issue a retraction, and readers would (not unreasonably!) eventually write us off as a bunch of chicken-littles; but if we didn’t report on it, then we ran the risk of any given action being the 1% exception, thus leaving our readers scrambling at the last second to understand and comply with some onerous new rule or regulation, demanding (not unreasonably!) to know how we could have let this sneak up on us. 

But now that the DOL understands that, for better or worse, administrative agencies are being “phased out” –  likely altogether, but at the very least as rulemaking entities – they can focus on opinion letters, amicus briefs¸ and other legal scholarly work befitting a dignified professor emeritus.  Thanks for your service, DOL, and enjoy your de facto retirement! You’ve earned it.